46 Neb. 58 | Neb. | 1895
The plaintiff in error was convicted in the district court of Lancaster county on an information charging him with making an assault upon one Louisa Schrader, a female child nine years of age, with intent to commit a rape upon her person. The prosecutrix had testified that immediately after the alleged assault she had made complaint thereof to her mother. On cross-examination she was asked, “ What did you tell your mother when you went out there?” This question was objected to, as incompetent and immaterial, and the objection was sustained. An offer was then made by the defendant to prove that prosecutrix had ma<le statements to her mother differing from the testimony she had given upon the stand, and the objection being repeated, was again sustained. In excluding this evidence on cross-examination we think the learned district judge erred. Whether in the examination in chiéf the particulars of the complaint may be elicited, or whether the state is restricted to a general inquiry as to the fact that a complaint was made, is a question upon which the authorities are not harmonious. In Regina v. Walker, 2 Moody & R. [Eng.], 212, Baron Parke said: “ The sense of the thing certainly is, that the jury should, in the first instance, know the nature of the complaint made by the prosecutrix, and all that she then said. But, for reasons which I never could understand, the usage has obtained that the prosecutrix’s counsel should only inquire, generally, whether a complaint was made by the prosecutrix of the prisoner’s conduct towards her, leaving the counsel of the latter [evidently meaning the prisoner’s] to bring,before the jury the particulars of that complaint by cross-examination.” This view has been taken by some courts whose decisions are entitled to the highest respect, and among authors it has received the approval of the late Justice Stephen. These authorities place the admissibility of such testimony
The plaintiff in error requested the following instruction, which was refused: “You are further instructed that you
The other assignments of error relate to matters which may be deemed accidental to the former trial, and not inherent in the case itself, and will not, therefore, be considered, except in one respect. It is assigned that the verdict is not sustained by the evidence, and in support of this assignment it is, among other things, suggested that the state failed to prove the venue. The evidence shows, without contradiction, that the offense, if any were committed, occurred in the home of the prosecutrix’s parents. The mother of the prosecutrix was asked: “Mrs. Schrader, where do you live?” A. “Eleven miles east; ten miles east and one mile north.” Q,. “Is your place in Lancaster county, Nebraska?” A. “Yes, sir.” The first question
Reversed and remanded.