Oleson v. State

• Decision Date: 26 May 1881
• Citation: 9 N.W. 38,11 Neb. 276
• Parties: OLESON v. STATE OF NEBRASKA.
• Court: Nebraska Supreme Court

11 Neb. 276

9 N.W. 38

OLESON

v.STATE OF NEBRASKA.

Supreme Court of Nebraska.

Filed May 26, 1881.

Error from Lancaster county.

Sessions & Scott, for plaintiff.

The Attorney General, for the State.

MAXWELL, C. J.

The plaintiff was convicted of rape at the October, 1880, term of the district court of Lancaster county, and sentenced to imprisonment in the penitentiary for three years. There are 17 assignments of error, but two of which will be considered. It is objected that the verdict is not sustained by sufficient evidence. The only testimony to establish the charge is that of Barbara Kastel, the prosecuting witness. In the case of Garrison v. The People, 6 Neb. 283, it was held that where the jury are satisfied beyond a reasonable doubt, from the testimony of the prosecuting witness alone, of the guilt of the accused, they will be justified in returning a verdict of guilty, as in many, if not most, cases it would be impossible to convict except upon such testimony. But by this it is not meant that the jury are bound to believe the unsupported testimony of the prosecuting witness, and return a verdict of guilty. The accusation is easily made, and is difficult to be defended against by one ever so innocent. But ordinarily there are circumstances connected with each case which tend to establish or disprove the charge, and thereby strengthen or diminish the credit to be given by the jury to the testimony of the prosecuting witness.

In the case of the The People v. Morrison, 1 Parker, Cr. Reports, 625, it is said: “To constitute the crime there must be unlawful and carnal knowledge of a woman by force and against her will. * * * The prosecutrix, if she was the weaker party, was bound to resist to the utmost. Nature had given her feet and hands with which she could kick and strike, teeth to bite, and a voice to cry out. All these should have been put in requisition in defence of her chastity.” Id.

In the People v. Doling, 59 New York, 374, it is held that in order to constitute the crime of rape of a female over 10 years of age, when it appears that at the time of the alleged offence she was conscious, had the possession of her natural, mental, and physical powers, was not overcome by numbers, or terrified by threats, or in such place or position that resistance would have been useless, it must also be made to appear that she did resist to the extent of her ability at the time and under the circumstances.”

In the case of People v. Benson, 6 Cal. 221, it is said: “In such cases the facts there was no outcry, though aid was at hand, and the prosecutrix knew it; that there was no immediate disclosure; that there was no indication of violence on her person; and that the act was committed at a time and under circumstances calculated to raise a doubt as to the employment of force,--are put as strong circumstances of defence, not as conclusive, but as throwing a doubt upon the assumption that there was a real absence of assault.”

In Whiting v. The State, 35 Ind. 506, the court say: “In prosecutions for this crime the best of judges of ancient and modern times have laid down certain tests by which to be governed in ascertaining the truthfulness of the party preferring the charge. They concur in...