72 Neb. 815 | Neb. | 1904
On a trial to the court and a jury upon an information filed by tlie county attorney, the defendant ivas by the verdict of the jury found guilty of the crime charged; and, after the overruling of a motion for a new trial, he was by the court sentenced to imprisonment in the penitentiary for a period of four years. To secure a reversal of the judgment thus imposed, the defendant has prosecuted proceedings in error in this court. The charging part of the
“There is no doubt of the conflict of authorities upon the question, but upon a.n examination of it, we are. of the opinion that the bet ten* rule in prosecutions for adultery is, to admit testimony of improper familiarities betiveen the parties, occurring both before and after the time the act is charged, /is corroborating evidence.” Citing with approval, Thayer v. Thayer, 101 Mass. 111.
This rule has been held applicable to cases such as the. one under consideration, in California, Iowa, Kansas, Kentucky, "North Carolina, Tennessee, Washington and Wisconsin.
In State v. King, 117 Ia. 481, 91 N. W. 768, it is said:
“It may be, as contended by appellant, that in most of the cases the proof related to acts preceding the particular offense charged, but in view of the purpose of such testimony to show the relationship and familiarity of the parties, and to corroborate the prosecutrix, we discover no good reason why evidence of acts subsequent to that charged, if in some way connected with it, may not have as direct a bearing on those occurring before. The weight of authority authorizes similar proof in casus wherein adultery is charged, and, as evidence of other acts is received on precisely the same principle in causes of this character, there is no apparent ground for rejecting such evidence, in the one class and receiving it in the other. The disposition toward each other might be quite as potential between parties when the female, though under 15 years of age, voluntarily yields her consent to the intercourse, as in the case of adultery; and we think evidence of repetition of the act so soon after the first offense rightfully admitted. Had the intercourse been against her consent, a different question would arise.”
“In principle there is no distinction, in this respect, between a prosecution where the charge is incest and a prosecution where the charge is rape upon a female child under the age of consent. The same reason that renders the testimony admissible in the one case renders it admissible in the other, and such is the effect of the authorities.”
The Wisconsin supreme court say:
“Evidence should be excluded which tends only to the proof of collateral facts. It should be admitted if it has a natural tendency to establish the fact in controversy. Under this rule, in prosecutions for adultery, other adulterous acts between the parties than the one for which the accused is on trial, may properly be given in evidence upon the ground that they tend to corroborate the evidence as to the particular act of adultery charged. In this case (statutory rape) it cannot be doubted that the evidence, as regards other acts of intercourse between the accused and the girl, tended to corroborate her evidence as to the particular act alleged, the same as in a case of adulterous intercourse.” Lanphere v. State, 114 Wis. 193, 89 N. W. 128. See, also, People v. Edwards, 73 Pac. (Cal.) 416; State v. Robertson, 121 N. Car. 551, 28 S. E. 59; Smith v. Commonwealth, 109 Ky. 685, 60 S. W. 531; Sykes v. State, 112 Tenn. 572, 82 S. W. 185; and State v. Borchert, 68 Kan. 360, 74 Pac. 1108.
We are satisfied that consistency and sound reason require the extension of the rule announced in Way v. State, supra, to a case like the one under consideration, and that the greater weight of authority, as well as the better reasoning, supports the rule. The fact, if it be one, that the evidence tends to prove another and independent crime does not necessarily determine its admissibility as evidence of the crime charged in the case at bar. The determinative question is, is it relevant and pertinent in establishing the offense charged, and does it throw some
“An attempt to suppress evidence, to stifle the prosecution, and to prevent a trial by flight beyond the jurisdiction, are circumstances from which unfavorable inferences may be drawn against the defendant in a criminal case.’’ So say this court in Hubbard v. State, 65 Neb. 805. See, also, George v. State, 61 Neb. 669; Richards v. State, 65 Neb. 808, and Blair v. State, 72 Neb. 501. The rules announced in these several authorities are quite applicable here and render all of the evidence of the nature referred to properly admissible.
“A woman not ‘previously unchaste’ within the meaning of section 12, chapter 4 of the criminal code, is one who has never had unlawful sexual intercourse with a 'male prior to the intercourse with which the prisoner stands indicted.”
These definitions and the holding in the case just cited unmistakably, we think, point to the conclusion that the fact in controversy is the previous chastity, or want thereof, of the prosecutrix, that is, the real character in its technical and stricter sense as distinguished from her reputed character; and that the evidence to establish such, when in controversy, at least to overcome the allegation of chastity, must be directed not to reputation, but to facts and circumstances of individual acts and conduct tending to prove a lack of that virtue in reality possessed by the female, which it is the object of the statute to protect. In a seduction case prosecuted criminally, Powell v. State, 20 So. (Miss.) 4, and which is analogous in many respects to a case like the one at bar, it is held that it is sufficient if a girl had never had sexual intercourse, although her reputation might be bad. Say the court:
“So long as a girl remains personally pure, so long as she is free from the pollution of criminal sexual intercourse', so long is she entitled to the protection of the law. * * * She may shock with the indiscretion of her speech and the freedom of her manners, and yet never have had a thought of parting with virtue, and,' until she does part with her virtue, she is regarded by the law as of chaste character.” See, also, Mills v. Commonwealth, 93 Va. 815; People v. Kehoe, 123 Cal. 224; State v. Brinkhaus, 34 Minn. 285; O’Neill v. State, 85 Ga. 383.
In Kenyon v. People, 26 N. Y. 203, under a seduction
In State v. Prizer, 49 Ia. 531, where a statute provides for the punishment for the seduction of any unmarried woman of previous chaste character, it is held that “character” refers to moral qualities and not to reputation, and that evidence of reputation was not admissible upon the issue of character, but only to impeach or corroborate testimony regarding particular acts of unchastity. In the opinion it is said:
“Such a character may be established by proof of particular acts, or by a course of life and conduct inconsistent with purity. A pure character may not be shown by reputation, but evidence of particular lewd conduct may be rebutted by proof of a good reputation. It will be observed that in no case can reputation be given in evidence ■ to establish the chastity or the impurity of the woman. A good reputation being shown by the prosecutrix in rebuttal of specific charges of lewdness, the state, of course, may introduce evidence upon that issue, and assail the woman’s reputation in contradiction of the evidence she has offered upon that point. It will thus be seen that evidence of reputation is not. admissible upon the issue involving the woman’s character, but only to discredit or support testimony tending to establish particular acts of lewdness.”
The rule as stated in the authority last cited impresses us as being both reasonable and sensible, and one well calculated to subserve the interests of justice and to protect the rights of the accused. A very interesting mono-graphic note relating to the admissibility of such evidence will be found in connection with the case of Bradshaw v. Jones, 103 Tenn. 331, 76 Am. St. Rep., 655. Upon both
Finding no error in the record prejudicial to the substantial rights of the accused, we reach the conclusion that the judgment ought to be in all things affirmed, Avhich is accordingly ordered.
Affirmed.