Abbott v. State

• Decision Date: 23 May 1925
• Docket Number: 24489
• Citation: 204 N.W. 74,113 Neb. 517
• Parties: CHARLES E. ABBOTT v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

204 N.W. 74

113 Neb. 517

CHARLES E. ABBOTT v. STATE OF NEBRASKA

No. 24489

Supreme Court of Nebraska

May 23, 1925

ERROR to the district court for Kearney county: WILLIAM A DILWORTH, JUDGE. Affirmed.

AFFIRMED.

King & Bracken, Charles A. Chappell, and Stewart, Perry & Van Pelt for plaintiff in error.

O. S Spillman, Attorney General, Lloyd Dort and J. L. McPheely, contra.

Heard before MORRISSEY, C. J., ROSE, GOOD and EVANS, JJ., REDICK and SHEPHERD, District Judges.

OPINION

PER CURIAM.

This was a prosecution for sodomy as defined by a recent statute. Comp. St. 1922, sec. 9777. In the information, carnal copulation per os was charged, the alleged victim being a female child not quite five years of age. The venue was Kearney county and the date of the alleged felony was May 19, 1923. Defendant was a physician practicing his profession and conducting a hospital in Minden. He pleaded not guilty, but was convicted and sentenced to serve a term of ten years in the penitentiary. As plaintiff in error he seeks a reversal of his conviction.

Among the questions presented for review and argued by defendant are the following:

Did the trial court err in overruling a plea in bar? In the county court of Kearney county May 26, 1923, defendant was accused of an assault May 19, 1923, upon a female child, and for that misdemeanor was sentenced to pay a fine of $ 100. While the prosecution for the assault was pending in the district court upon appeal, the information for sodomy alleged to have been committed May 19, 1923, was filed in the county court September 4, 1924. To answer the latter charge defendant was bound over to the district court, where he interposed the plea that the information for sodomy was based on the identical facts charged in the complaint for assault. He contends that the assault charged was included in the information for sodomy, that the two offenses could not have been committed by a single criminal act, and that therefore the second prosecution was barred by the first. The facts constituting the plea in bar were put in issue by a reply in which the state took the position that the misdemeanor charged was not based on the facts evidencing the felony of which defendant was accused. By consent, the issues raised by the plea in bar and the reply thereto were tried to the district court without a jury. The decision was in favor of the state. The accusations themselves do not disclose that the unlawful acts charged in the two prosecutions were identical. An examination of the evidence from every standpoint shows that there is a logical view in which the ruling against defendant on his plea in bar is correct. While it is charged in each of the two accusations that the criminal act was committed May 19, 1923, a prior date for each separate offense within the statute of limitations was provable. There is testimony to the effect that the assault occurred May 8, 1923, and the graver offense at an earlier date. The ruling below is free from error, and it follows that a subsequent motion to require an election between charges was properly overruled.

Did the trial court err in overruling a plea in abatement? The affirmative of this question seems to be based on the following propositions: The original complaint in the county court for sodomy did not contain a valid charge thereof. It failed to state that defendant was a male person over the age of 21 years. While the information in the district court for sodomy was sufficient as such, defendant was deprived of his right to a preliminary hearing under a real accusation. The position thus taken by defendant does not seem to be tenable. The new law says nothing about the age or the sex of the offender. The complaint, however, accused defendant by the name of "Charles" E. Abbott, showing that he is a male person. The revolting act constituting the statutory offense is charged in direct terms as having been committed by him "unlawfully, wickedly, and feloniously," indicating criminal capacity to do so. In any event, the charge was made substantially in the language of the statute. The plea in abatement was properly overruled. For the same reasons a refusal to quash the information was free from error.

Did the trial court err in permitting special counsel to assist the county attorney? For that purpose a capable lawyer was selected and he participated to some extent in the prosecution. It is insisted that this step was unnecessary for the reason the county attorney was able and experienced and that the selection made was objectionable because the special counsel employed was attorney for the father of the child named in the information. It is further contended that special counsel attempted to procure a conviction by means of incompetent testimony prejudicial to defendant. If the trial judge anticipated the vigor of the defense, the subtle questions of law involved, the objections to evidence and the difficulty of proving sodomy without any eye-witnesses except accused, an experienced physician, and his alleged victim a defenseless little girl, the propriety of selecting special counsel to share the duties and responsibilities of the county attorney, however well equipped, was obvious. Society for its own protection calls for the services of able attorneys for the state in criminal prosecutions and the law permits the employment of assistants. An examination of the entire record fails to show error in permitting the employment of special counsel or misconduct on the latter's part. A substantial reason for setting aside the conviction on this ground has not been given.

Did the trial court err in permitting proof of similar acts of defendant at other times with different victims? A young man was permitted to testify that, when a child, several years earlier, he had been induced by defendant to submit to pederasty, giving details. A little girl stated on the witness-stand that recently, while riding with defendant, he made indecent inquiries. There were objections to testimony of this kind on the ground that it was incompetent. The objections were argued on review at considerable length and there were references to many cases applying the rule that in a prosecution for a crime evidence of a similar crime at another time is inadmissible. There is no doubt about the existence of the general rule, but the admissibility of such testimony under an exception is the test in the present instance. The felony charged is one of peculiar and shocking enormity, the victim a female child of tender years. The criminal impulse which makes such an act possible is unnatural and unusual. The felony itself...