106 Neb. 362 | Neb. | 1921
A complaint and information was filed by W. R. Starr, an attorney specially appointed by the court to prosecute the plaintiff in error, who will hereafter be referred to as the defendant.
The first count of the information charges that the defendant, on or about the last day of October, 1918, in the county of Red Willow, “being then and there a male person of the age of 18 years and upwards, knowingly, unlawfully and feloniously did carnally know and abuse one Anna Clary, a female child other than his daughter or sister, without her consent, and said Anna Clary then and there being not over 15 years of age, and of previous chaste character.”
The second count charges that “on or about the 29th day of March, 1919, one Ross Roberts, a male person over the age of 18 years, in the county of Red Willow and state of Nebraska, in and upon one Anna Clary, then and there being a female child under the age of 18 years, and not his daughter or sister, unlawfully, feloniously, forcibly and against her will, did carnally abuse; she, the said
The defendant was found guilty, motion for new trial was overruled, the defendant was sentenced to confinement in the penitentiary for a period of three years, and from this judgment has prosecuted error.
Nine assignments of eiTor are presented to this court by counsel for defendant. We need consider only the fourth, fifth, sixth and eighth assignments.
The fourth assignment relates to instruction No. 1. This instruction is a copy of counts 1 and 2 of the information.
At the conclusion of the state’s evidence it was required to elect upon which count it would stand, and elected to prosecute under the allegations contained in the second count, Avhich charges the defendant with having sexual intercourse with the complaining witness in March, 1919. The first count charged the defendant with having had such relations Avith her in October, 19T8, when she Avas under 15 years of age.
It Avas error for the court to have incorporated the first count of the information as a part of instruction No. 1, without instructing the jury it had been dismissed by the court, and that it was not to consider the charge contained therein.
This court has repeatedly criticized the practice of copying pleadings in full as a method of stating the issues to the jury. The inclusion of a count of an information which contains allegations Avhich were not supported by evidence, and which the state elected not to stand upon, ordinarily constitutes prejudicial error. Jurors are not lawyers and many of them, cannot discriminate between the portions of a lengthy charge which contains statements made in pleadings and the remainder of it. Where a count in an information charging rape contains allegations which are supported only by the testimony of the complaining witness, and the, state has elected not to prosecute under such count, it is error to include the alie
The fifth assignment relates to instruction No. 11. By this instruction the trial court told the jury that “It is a rule of law that, if a witness is found to have wilfully or intentionally sworn falsely upon any material fact, such witness is presumed to have testified falsely as to other material facts.” This instruction does not correctly state the law, but was probably not in this case prejudicial to the rights of the defendant.
The sixth assignment relates to the sixteenth instruction, which is as follows: “You are instructed that the time of an alleged offense must be alleged in an information with certainty, but proof is admissible to show that the offense charged was actually committed at or near the time alleged. That is, the state must satisfy you beyond a reasonable doubt, by the evidence, that the crime charged was committed within three years next prior to the date of the filing of the information in this case, to-wit, November 17, 1919.”
This instruction could only have confused the jury. There is no evidence in the record from which they could have found that the defendant had ever had sexual intercourse with the complaining witness other than in October, 1918, or on March 29, 1919. There is no evidence in corroboration of the testimony of the complaining witness as to the assault alleged to have been committed in October, 1918, and the first count of the information alleging such assault was dismissed by the court. Under these circumstances the jury were not at liberty to consider, nor speculate as to, whether he had ever assaulted her at any other time than on March 29, 1919.
The eighth assignment deals with the sufficiency of the evidence. The complaining witness testified that the accused entered the building in which she was sleeping, and
Reversed.