27 N.W. 234 (Neb. 1886), Matthews v. State

Citation:27 N.W. 234, 19 Neb. 330
Opinion Judge:MAXWELL, CH. J.
Party Name:PETER MATHEWS, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR
Attorney:J. L. Caldwell, for plaintiff in error. William Leese, Attorney General, for defendant in error.
Case Date:March 17, 1886
Court:Supreme Court of Nebraska
 
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Page 234

27 N.W. 234 (Neb. 1886)

19 Neb. 330

PETER MATHEWS, PLAINTIFF IN ERROR,

v.

THE STATE OF NEBRASKA, DEFENDANT IN ERROR

Supreme Court of Nebraska

March 17, 1886

ERROR to the district court of Lancaster county. Tried below before POUND, J.

REVERSED AND REMANDED.

J. L. Caldwell, for plaintiff in error.

William Leese, Attorney General, for defendant in error.

OPINION

[19 Neb. 331] MAXWELL, CH. J.

The plaintiff was convicted of the crime of rape at the May term, 1885, of the district court of Lancaster county, and was sentenced to imprisonment in the penitentiary for three years. He now alleges error in the proceedings. The errors deemed material will be noticed in their order.

First, that the verdict is not sustained by the evidence. The sole testimony upon which the verdict rests is that of the prosecuting witness. She testifies that the offense was committed in March, 1881; that at that time and for some years previously she had resided in a shanty 10 by 12 feet square in North Bluff precinct; that in 1881 her husband had been dead about two years, and that she lived entirely alone; that her nearest neighbors were named Maher, and resided about eighty rods from her residence; that on the morning of the day on which the offense is alleged to have been committed the prisoner and one Taylor came to her residence and shoveled the snow away from around the same and carried in fuel, etc., and then left; that in ten or fifteen minutes after Mathews and Taylor left--"about ten minutes, I should think--not more than ten minutes--I had not made my dinner yet--Mathews returned. * * * He said, 'Come and lay down on the bed.' I said, 'No, sir, I don't do that kind of business, unless I was married to a man.' He said, it would not be long; something like that; he just took my chair and wheeled it around--didn't throw me off; he waited a few minutes to see if I was going; I didn't go, and he wheeled it round the second time; still I didn't go, and he took hold of me and threw me off."

Prosecuting Attorney. Go on and tell how he threw you on the bed.

[19 Neb. 332] A.

Page 235

He took me round the waist and throwed me on the bed, and then kept me there till he got his satisfaction.

Q. State what he did?

A. Till he had full connection with me.

Q. What did you do while on the bed?

A. I got away from him once; then he got me back the second time--he being strong and I being so weak, wanting something to eat and fright together, I had not much strength--you all know that--you ought to know it; I tried to get away the second time, but could not get away; he kept me till he got his satisfaction.

Q. Had he connection with you?

A. Yes, full connection.

Q. State to the jury what you did in the way of resisting--if you did anything more, tell it?

A. I did not do anything more, but just tried to get away from him all I could.

Q. Did you use your full strength?

A. I used all the strength I had to get away from him, but could not.

This is all the testimony in the record in regard to the force alleged to have been used by the prisoner, or the resistance of the witness. She also testifies that she was 58 years old at that time.

In Oleson v. State, 11 Neb. 276, 9 N.W. 38, it was held that where it appears that at the time the offense was alleged to have been committed the prosecutrix was conscious, and had possession of her natural mental and physical powers, and was not terrified by threats or in such a position that resistance would be useless, it must appear that she resisted to the extent of her ability. In that case the offense was alleged to have been committed about 10 o'clock at night in the...

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