108 Neb. 186 | Neb. | 1922
Willicm H. Schrum was contacted in the district court for Douglas county of hatting committed the crime of incest upon his 12-year-old daughter, Ida Schrum, on July 8, 1920, and Avas sentenced to seiwe a-term not exceeding 20 years in the penitentiary. From this judgment he has brought the- case to this court for review. A number of alleged errors are relied upon in his brief and were presented on oral argument, but we deem it necessary to consider only two of them.
The most important of the errors assighed relates to the giving by the trial court of instruction No. 8, which reads as follows:
“The charge made against the defendant in the information is that he committed the act of incest, that is, had sexual intercourse with the prosecuting witness, on or about July 8,1920, and this is the specific act charged and of Avhich you are called upon to say whether the defendant is guilty or innocent. EAÚdence of other acts of like intercourse by the defendant Avith the prosecuting witness prior to July 8, 1920, has been admitted upon the trial; this evidence is properly admitted but for the purpose only as bearing upon the probability or improbability of the defendant being guilty of the particular act charged in the information, and it is to this extent only you should consider said testimony.”
The plaintiff in error, who will for convenience hereafter be designated the defendant, urges that the portion of this instruction beginning Avith the words “evidence of other acts of like intercourse” specifically authorized the jury, under the evidence in the case, to consider the testimony of the prosecutrix as to other similar acts by the defendant with her as corroboration of her testimony as to the specific act charged in the information.
In order to determine whethei; or not this contention
The defendant denied specifically that he had ever had or attempted to have sexual intercourse, with Ida. He testi-. fied that he was 41 years old and had lived in the, same, house since September, 1907. He presented seven character Avitnesses, four Avomen and three men, all being married and haA’ing children, and two of the men being business men in the community. All but two had lived in the community ten or twelve years or more, and those two had lived there about fitve years, and all had known the defendant during their residence. Two of them Avere the defendant’s nearest neighbors. All of them testified that the defendant's reputation in the community was that of being a moral, laAv-abiding and decent citizen; and one of the Avomen testified that the defendant’s wife had been arrested tAvice Avhile she liA’ed there. The lady Avho lived next door, 20 feet away, had resided there for over 10 years, had a
The defendant contends that the prosecution was the result of ill-feeling and hatred toward him by his divorced wife, and there are evidences in the record that the feeling between them was not good. However that may have been, it is clear that there is no evidence in the record corroborating the testimony of Ida as to any act of intercourse other than that alleged to have occurred on July 8, 1920, and the state so admits in its brief filed in this court. In this state of the record the trial court in the eighth instruction virtually instructed the jury that Ida’s uncorroborated testimony as to other acts of intercourse prior to July 8,1920, should be considered by them “as bearing upon the probability or improbability of the defendant being guilty of the particular act charged in the informationin other words, that Ida’s uncorroborated testimony as to other acts of intercourse might constitute corroboration of her testimony as to the act of July 8. In the sixth instruction the jury had been properly instructed that Ida’s testimony as to the principal act charged need not be corroborated by testimony of other witnesses, but that it would be sufficient if she were “corroborated as to material facts and circumstances which tend to support her testimony and from which, together with her testimony as to the principal fact, inference of guilt may be drawn.” Nothing would be more natural for the jury to do under these instructions, if they concluded that credence was not to be placed in the corroborating testimony of Myrtle, because of her youth, the discrepancies between her present and her former testimony, or any other reason, than, after listening to the nauseating recital by Ida of her continued and repeated abuse by her father, and being impressed by if, as well they might be, to conclude that they were justified in wholly disregarding the defendant’s denials and the evidence of his good reputation for morality and decency
The rule of law with respect to corroboration is no different in a case of incest than it is in a case of rape, and this case is exactly analogous to the case of Boling v. State, 91 Neb. 599, except that in the cited case the corroboration ■of the act charged was possibly more worthy of belief because. it was offered by a sister 20 years’ old who was not shown to have made previous conflicting or contradictory statements. In the, cited case the prosecutrix’s unsupported testimony as to a subsequent offense was admitted. The opinion states:
“This evidence 'was admitted as corroborative evidence tending to corroborate the evidence as to the bed assault, which had been testified to by both the prosecutrix and her elder sister. The court also by two instructions instructed the jury to the same effect. This action is assigned as error. Under the rule stated in Woodruff v. State, 72 Neb. 815, and Leedom v. State, 81 Neb. 585, proof •of the commission of the other offense, by competent testimony, is admissible. We do not wish to be understood as holding otherwise; no thought of doing so. But the question here is: Is the unsupported testimony of the prosecutrix of other criminal acts competent as corroborative Evidence? In other words, can the uncorroborated evidence of other offenses, testified to by the prosecutrix alone, corroborate her testimony as to the principal fact? Can she by her unsupported testimony corroborate herself?” The court held that she could not, and reversed the case.
In the case of Hudson v. State, 97 Neb. 47, error was assigned because the state was permitted to prove by the prosecutrix that the defendant had had sexual intercourse with her at other times than the one charged in the in
“There can be no doubt that proof of facts and circumstances tending to show other acts, of intercourse about the time charged in the information is properly admissible in cases of this nature. Leedom v. State, 81 Neb. 585; Woodruff v. State, 72 Neb. 815. This evidence, in order to be corroborative in character, should proceed from other sources than from the prosecutrix alone. If a witness testifies that criminal intercourse was had upon one day, the fact that she testifies that a like act was had upon another occasion does not corroborate her testimony. Boling v. State, 91 Neb. 599. The evidence was admissible as part of the proof of other acts, but its value as matter of corroboration was for the jury. The court instructed the jury that the prosecuting witness could not corroborate herself by statements of other acts, and thus the interests of the defendant were protected.”
In view of the state of the record in this case, we are of the. opinion that the giving of the eighth instruction was prejudicially erroneous to the rights of the defendant.
The defendant urges that the summary overruling by the trial court of his plea in bar, filed by him just prior to the beginning of the second trial, without requiring the state to join issues thereon, was error. As a new trial will be necessary, a proper disposition of any question relating to the plea in bar should precede such trial. Therefore this alleged error will be considered. A careful examination of the transcript shows that the action of the trial court was correct and without error for two reasons: In the first place, the plea in bar was not sworn to by the defendant, as is required by section 9094, Rev. St. 1913. In the second place, even if the plea had been sufficient in form, it was filed without requesting or securing permission to withdraw the defendant’s plea of not guilty. In the case of Davis v. State, 51 Neb. 301, an unsworn plea in bar was filed under similar circumstances, and the court
Therefore, because of the error committed in giving instruction numbered 8, the judgment of the district court is reversed, and the cause remanded.
Reversed.