83 Neb. 226 | Neb. | 1909
Lead Opinion
Amos Mott, hereafter called the defendant, was convicted of the crime of statutory rape at the April, 1908, term of the district court for Buffalo county, and was sentenced to imprisonment in the penitentiary for seven years. He now alleges error in the proceedings. His assignments, so far as we deem them material, will be considered in the order in which they are presented.
Defendant contends, first, that the verdict is not sustained by sufficient evidence, and, second, that the verdict and judgment are contrary to law, and these assignments will be considered together.
It may be conceded at the outset that there is no sub
The defendant testified in his own behalf, and denied positively and explicitly that he ever at any time had
Tbe state contends that tbe fact that tbe parties were well acquainted tends to corroborate tbe evidence of tbe prosecutrix. It appears that a brother of tbe defendant married a sister of the prosecuting witness and this fact is sufficient to account for the matter of mere acquaintanceship, and tbe slight acts of familiarity, if any such acts are shown to'have occurred between tbe parties. It is also claimed tbe defendant was seen in company with tbe prosecutrix on the evening of June 1, 1907, and after-wards took her home and helped her onto tbe porch. This defendant denies, and shows bis whereabouts at that time. It is true that tbe mother of tbe prosecutrix testified that tbe defendant brought her daughter home and helped her onto tbe porch on tbe night of June 1, 1907; but at least four other witnesses testified that she was at a dance at the home of a man of the name of Shaw, and was accompanied by a young man of tbe name of Jesse Shoop, who says he took her to tbe dance, and escorted her home therefrom. It is doubtful if tbe mere fact of being seen in her company and taking her home amounts to a corroboration, but, if so, tbe whole question is put in doubt by tbe conflicting evidence as to her whereabouts when she alleges the transaction in question occurred. The mother also testified that at or about 7 or 8 o’clock on tbe morning of June 2, she found a blue silk skirt worn by her daughter tbe previous evening across
Finally, it is contended that defendant left the county after learning that a warrant was out for his arrest, and this is corroborative of his guilt. We think the evidence fails to support this contention. It is an undisputed fact that complaint was filed in this case, and a warrant was issued and placed in the hands of the sheriff of Buffalo county with a request not to serve it upon the defendant until further orders. It also appears that defendant was advised of that fact, and the warrant was held by the sheriff for several weeks without any attempt to serve it; that defendant notified the sheriff of his intended trip to Illinois, and,.as shown by the evidence, as soon as he as
Without resorting to quotation, we have stated the substance of the evidence which the state claims corroborates the testimony of the prosecutrix as to the principal fact involved in this controversy. That such corroboration is required is well settled. Mathews v. State, 19 Neb. 330; Klawitter v. State, 76 Neb. 49; Burk v. State, 79 Neb. 241; Fitzgerald v. State, 78 Neb. 1. As to the nature of the corroboration necessary to sustain a conviction in such cases, the authorities seem quite clear. Where the law requires the corroboration of a witness, it must be accomplished by other evidence than that of the witness himself. His own acts or statements do not constitute corroborative evidence. State v. Kingsley, 39 Ia. 439; State v. Lenihan, 88 Ia. 670; State v. McGinn, 109 Ia. 641. Facts, whether main or collateral, must be established by competent testimony before they become, of probative force in a lawsuit; and it is self-evident that the main fact in this case cannot be strengthened by a collateral fact, the existence of which is dependent upon the same class of testimony.
Again, if it be admitted that the defendant was in the company of the prosecutrix, as testified to by' the Grieves girls, and if it be further admitted that the defendant on one occasion at or about June 1, 1907, brought the prosecutrix home in the evening, as stated by the mother, these facts of themselves alone are not corroborative, because they simply mean .opportunity, and opportunity is not of itself corroboration. Fitzgerald v. State, supra. So we conclude that the testimony of the prosecutrix was not sufficiently corroborated, and the evidence is insufficient to sustain the verdict. This requires a reversal of the judgment, and renders it unnecessary for us to discuss any of the other errors complained of.
It is possible, and indeed it is quite probable, that the
For the foregoing reasons, the judgment of the district court is reversed and the cause is remanded for further proceedings according to law.
Reversed.
Dissenting Opinion
dissenting.
I cannot concur in a judgment of reversal. Defendant was given a fair trial. He was ably defended by experienced counsel, and, as the jurors heard all of the witnesses testify and found beyond a reasonable doubt that he was guilty as charged, their verdict ought not to be disregarded because the corroborative evidence is contradicted and not altogether probable. The sufficiency of that evidence was for the «jury to "determine. State v. Norris, 127 Ia. 683; Van Vleck v. Anderson, 136 Ia. 366; State v. Montgomery, 79 Ia. 737; Commonwealth v. Allen, 135 Pa. St. 483. The birth of the complaining witness’ child established the fact that some one had committed the offense charged. Suther v. State, 118 Ala. 88. To connect defendant therewith there is the positive statement of the injured female, the testimony of the