Woodruff v. State

• Decision Date: 21 December 1904
• Docket Number: 13,659
• Citation: 101 N.W. 1114,72 Neb. 815
• Parties: LOUIS F. WOODRUFF v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

101 N.W. 1114

72 Neb. 815

LOUIS F. WOODRUFF v. STATE OF NEBRASKA

No. 13,659

Supreme Court of Nebraska

December 21, 1904

ERROR to the district court for York county: BENJAMIN F. GOOD JUDGE. Affirmed.

AFFIRMED.

France & France, for plaintiff in error.

Frank N. Prout, Attorney General, Norris Brown and Meeker & Wray contra.

OPINION

HOLCOMB, C. J.

On a trial to the court and a jury upon an information filed by the county attorney, the defendant was 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 information is that "said Louis F. Woodruff being then and there a male person over the age of 18 years, in and upon one Mabel Kerwood, a female child under the age of 18 years, to wit, between 15 and 16 years of age, and not previously unchaste, then and there being, feloniously did make and assault, and her, the said Mabel Kerwood, then and there wickedly, unlawfully and feloniously did carnally know and abuse. She, the said Mabel Kerwood, being then and there a female child between 15 and 16 years of age, as aforesaid, and not previously unchaste." Section 12 of the criminal code declares: "If any male person, of the age of 18 years or upwards, shall carnally know or abuse any female child under the age of 18 years, with her consent, unless such female child so known and abused is over 15 years of age and previously unchaste, every such person so offending shall be deemed guilty of a rape." The gravamen of the offense charged under the section defining the crime is the unlawful sexual intercourse by a male person over 18 years of age with a female child under the age of consent. In the case at bar, the prosecutrix being over 15 years of age, her alleged previous chastity was put in issue, and evidence was introduced for the purpose of showing she was previously unchaste, and as a complete defense to the crime charged. With these preliminary observations we proceed to a consideration of the more important of the alleged errors which are assigned and argued as grounds for a reversal of the judgment of conviction. The errors complained of are confined almost wholly to the rulings of the trial court on the admission and rejection of evidence and its instructions to the jury.

1. It is assigned as error that defendant's substantial rights were prejudiced because of the many leading questions permitted to be propounded to the prosecutrix over objections, and by that means eliciting answers favorable to the prosecution in support of the charge preferred. We find upon examining the record that many of the questions complained of as leading do not in fact suggest or lead to the answer desired. While they may be answered by yes or no, they are not necessarily for that reason to be regarded as leading. Some are preliminary in their nature and as such, even though leading, are permissible. Others, after the prosecutrix had narrated all the facts in response to questions leading up to and including the commission of the crime charged, to the form of which we see no valid objections, were for the purpose of furnishing technical proof of the alleged unlawful act. Some of these questions which were permitted to be asked and answered may have been, and probably were, in a measure, of a leading character, but regarding which we are satisfied no abuse of discretion was committed by the trial court in suffering the examination to be pursued in the manner in which it was. It is, say all the authorities, discretionary with the trial court in both civil and criminal cases to allow leading questions on the direct examination; the discretion, of course, being a legal one and subject to proper limitations. Stephen, Digest of the Law of Evidence, 445, and note; McKelvey, Evidence, sec. 237, and notes. In Edwards v. State, 69 Neb. 386, 95 N.W. 1038, it is held that the trial court has a large, though not unlimited, discretion in granting or refusing permission to ask a witness leading questions. In support of the rule there is cited in the opinion, Schmelling v. State, 57 Neb. 562, 78 N.W. 279, and Welsh v. State, 60 Neb. 101, 82 N.W. 368. We are satisfied that no serious error was committed by the trial court in respect of the matter complained of.

2. It is next contended that error prejudicial to the defendant was committed in permitting the prosecutrix to testify as she did to subsequent acts of illicit intercourse, which occurred at frequent intervals soon after the commission of the crime charged in the information. As we have noted, the essence of the offense is the unlawful sexual intercourse. The reason for the rule which should govern in respect to the admissibility of evidence to prove the charge ought not, it would seem, to be essentially different from evidence admissible to prove the crime of adultery or seduction. In the case of Way v. State, 5 Neb. 283, it is held that, on a charge of adultery, evidence of improper familiarities between the parties, both anterior and subsequent to the time the offense is charged, may be received as corroborating proof, after evidence has been offered tending to prove the offense charged. In the opinion it is said:

"There is no doubt of the conflict of authorities upon the question, but upon an examination of it, we are of the opinion that the better rule in prosecutions for adultery is, to admit testimony of improper familiarities between the parties, occurring both before and after the time the act is charged, as 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 Iowa 484, 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 cases 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 State v. Fetterly, 33 Wash. 599, 74 P. 810, the court say:

"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. Mathews, 73 P. 416; State v. Robertson, 121 N.C. 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 P. 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 light on that controversy and assist in the ascertainment of the truth in respect of such charge? We feel confident in the correctness of our position in saying that it does; and, if believed, the evidence is corroborative of the ultimate fact sought to be proved; that is, the act of sexual intercourse as charged in the information. It is also in this connection contended that the court erred in permitting the prosecutrix to testify that at the time of the commission of the alleged offense, and immediately before the act of sexual intercourse, the accused said he would marry the prosecutrix if he got her into any trouble. W...