Rhoades v. State

102 Neb. 750 | Neb. | 1918

Cornish, J.

Defendant, convicted of statutory rape upon a child under the age of 18 years, brings error to this court.

The defendant did not testify. The trial court, over his objection, permitted the mother of the complaining witness in her direct examination to give, in full, detailed statements of the complaining witness going to show sexual relations between her and the defendant, and also. statements touching their general relations, not sexual. This was error, and, under the circumstances of this case, where, as shown by the record, evidence of the corpus delicti was slight was prejudicial to the rights of the defendant. The rule in such ease is stated in the second paragraph of the syllabus in Henderson v. State, 85 Neb. 444.

When the complaining witness was called to testify, the court, after conferring with the witness, and because of the delicate nature of her testimony, ordered that those present merely as listeners .retire from the courtroom until authorized to return. This was objected to as a denial to the defendant of his right to a public trial, guaranteed by section 11, art. I of the Constitution. We are of opinion that this objection should have been sustained. Under the constitutional provision, the general public,.as such, cannot be excluded. The public is admitted so that it may know that the accused is fairly dealt with and so that his triers will be keenly alive to a sense of their responsibility. Reasonable restrictions, for want of space, upon the number admitted are permissible; also upon persons of immature years where the evidence relates to scandalous, indecent or immoral matters. When those present conduct themselves in a manner tending to obstruct justice, or tending to give either the state or the defendant an unfair trial, the courtroom may be cleared of them. Other occasions may arise when, in the discretion of the court, such order would be permissible. It is difficult to say that the court’s order in this instance did not exclude the general public. 8 R. C. L. p. 75, secs. 29, 30,

The court properly refused defendant’s requested instruction No 1, substantially to the effect that, if the evidence of any particular witness is reconcilable with innocence upon any reasonable hypothesis, it should not be given a criminal meaning. The rule invoked applies to the testimony as a whole, and is limited in its application to circumstantial evidence. Casper v. State, 100 Neb. 367.

The judgment of the district court is reversed and the cause remanded for further proceedings.

Reversed.