41 Neb. 238 | Neb. | 1894
The county attorney filed in the court below an information charging the plaintiff in error, B. L. Wanzer, on the 3d day of March, 1892, with having made an assault upon one Sarah E. Pomeroy with intent to commit rape. At the close of the testimony the trial judge, among other instructions, charged the jury that the evidence adduced was insufficient to authorize a conviction for an assault with intent to commit rape, and that they would only consider the question whether or not the accused had committed an assault, merely, upon the prosecuting witness. A verdict was returned by the jury finding the prisoner guilty of a simple assault, and thereupon the court, after overruling a motion for a new trial, sentenced him to pay a fine of $100, and that he be imprisoned for three months in the county jail.
It is insisted that the court, erred in its instruction upon the question of a reasonable doubt, which is paragraph 3 of the series given by the court upon its own motion. Inasmuch as plaintiff in error failed to complain of the giving of this particular instruction in his motion for a new trial, we will not consider or pass upon the accuracy of that part of the charge.
Error is assigned in the petition in error upon the giving of the fifth instruction requested by the state. We find no such instruction in the record before us. In fact it does not appear that the state presented any x’equest to charge. Doubtless the instruction intended is the fifth, given by the court upon its own motion, which reads as follows: “You are instructed that any man taking indecent liberties with a woman without her consent is guilty of an assault upon her, and if you believe, beyond a reasonable doubt, that upon the 3d day of March, 1892, defendant, while alone with the complaining witness, and while in the capacity of a physician, was treating her for a disease, and while so treating her took indecent liberties with her by lying upon her, that he at the time made an indecent exposure of his person before her, then you are instructed that in
It is finally insisted that the judgment should be reversed because the state was permitted by the court to introduce evidence of the character of the medical treatment employed by plaintiff in error, and afterwards directing the elimination of the testimony from the record. Sueli practice was condemned in Bedford v. State, 36 Neb., 702. The point, however, sought to be presented for consideration is not raised by petition in error so as to require our taking notice of it.
The fourth assignment of error is in this language: “ Error of law occurring at the trial.” While such an assignment is permissible in a motion for a new trial, it is insufficient in a petition in error to present for review the rulings of the trial court on the admission or exclusion of the testimony. (Lowe v. City of Omaha, 33 Neb., 587.) We discover no reversible error in the record, and the judgment is therefore
Affirmed.