54 Neb. 1 | Neb. | 1898
This was an action for criminal conversation, resulting in the district court in a judgment for the plaintiff, which was by this court affirmed. (Smith v. Meyers, 52 Neb. 70.) A rehearing was granted, and the questions involved have been re-examined.
Perhaps the most vigorous attack is made upon the judgment on the ground that the court erred in overruling defendant’s motion to strike out certain portions of the reply. This assignment of error was disposed of in the former opinion very briefly, on the principle that the defendant, by allegations in his answer, had invited the pleading in the reply of the matter at which the motion was aimed. After re-examining the record in the light of the argument on the rehearing, we are entirely satisfied with the conclusion expressed in the former opinion, but deem it best at this time to more particularly state the manner in which the question is presented. The answer contained, in its first paragraph, a denial of all averments in the petition except that of the marriage relation existing between the plaintiff and the person with whbm the illicit relations were charged to have been had. In the second paragraph the defendant pleaded that the plaintiff was still living with his wife,
Closely related to this question is the assignment that the court erred in permitting the county attorney to testify that the plaintiff and his wife had requested him to prosecute the defendant for rape. The mere fact was proved. The details were not offered. The defendant had pleaded that the plaintiff and wife were living together, and that plaintiff had asked for money and agreed to retract his charges on payment of the sum demanded. Plaintiff had undertaken to meet this by showing that as his wife first narrated the circumstances to him, the case was one of rape, a circumstance which would explain the continued cohabitation, and rebut the inference of connivance for which the defendant contended. In this aspect the evidence was properly admitted, provided the issue was properly permitted, and we have already held that the defendant after tendering the issue cannot be heard to say that it was immaterial. So far as the evidence, taken with that tending to show an offer to compromise, might tend also to show an attempt to compoxmd a felony, we cannot see how it was prejudicial to the defendant.
Complaint is made of the giving of certain instructions asked by the plaintiff to the effect that parties have a right to compromise their differences, and that if it should be found that an offer had been made solely for that purpose it must be disregarded. It may be as contended that the action is an anomaly and a relic of a primitive civilization. Whether it is better to permit to men the somewhat doubtful satisfaction afforded by a public airing of such a grievance and the solace of a money judgment, or whether, on the other hand, it would be better to leave the parties to the form of redress which would be resorted to in the absence of an action at law,
Two instructions were requested by the defendant to the effect that the law so far presumes the wife to be under the control of the husband that, except for homicide and treason, she is conclusively presumed to commit any crime committed in his presence under compulsion by him, and that therefore she could not be convicted of perjury because of her testimony in this case, even if, in the language of the instruction, the action was “a blackmailing scheme, and set up job on the defendant.” The language quoted was so undignified, to use no harsher term, that the court was for that reason quite warranted in refusing to give it judicial sanction by incorporating it in its charge. But beyond this, its object was to discredit the wife’s testimony by stating that she was not subject to the penalties of perjury because of the presumed coercion of the husband. The general rule stated may have the sanction of age and may have been justified by the social conditions of primitive times, when we are told that the husband might moderately chastise his wife, the only issue in such case being the size of the stick employed for such purpose. We do not care to inquire what real sanction it finds in adjudicated cases — possibly no more than is found for the law of chastisement. Certain it is that such a presumption rpns counter to our broad
Other questions argued are discussed in the former opinion. They have been re-examined, but we have seen no reason to depart from the views therein expressed.
Affirmed.