Abbott v. State

• Citation: 206 N.W. 153,113 Neb. 517
• Decision Date: 08 December 1925
• Docket Number: No. 24489.,24489.
• Parties: ABBOTT v. STATE.
• Court: Supreme Court of Nebraska

113 Neb. 517

206 N.W. 153

ABBOTT

v.STATE.

No. 24489.

Supreme Court of Nebraska.

Dec. 8, 1925.

Syllabus by the Court.

In a criminal action, where the information charges but a single offense, and the state, on the trial, introduces evidence tending to prove several distinct, criminal transactions, to any one of which the offense charged in the information might relate, and the defendant moves to require the state to elect on which transaction it will rely for a conviction, it is error to deny such motion.

It is a general rule that, on the trial of one accused of crime, proof of distinct and independent offenses, even of a similar nature, is inadmissible. To this rule there are exceptions; but, in order to make evidence of other independent offenses admissible, it must appear that the evidence offered falls within one of the recognized exceptions.

On the trial of one charged with the offense of sodomy, it is error to permit a witness to testify that on an occasion, more than a year previous to the time charged, the defendant had asked her an improper or indecent question, where it appears that such question had no relation to the offense charged.

Evidence examined, and held not to affirmatively show that the offense charged was committed in the county where the action was instituted.

Upon the trial of one charged with a single criminal offense, where evidence has been introduced as to several criminal transactions, to any one of which the information might relate, it is error to so instruct the jury that they may found their verdict on any one of the criminal acts disclosed by the evidence.

Error to District Court, Kearney County; Dilworth, Judge.

On rehearing. Former opinion, in so far as conflicting with instant opinion, withdrawn, and judgment of conviction reversed and cause remanded.

For former opinion, see 204 N. W. 74.M. D. King and C. A. Chappell, both of Minden, and Stewart, Perry, Stewart & Van Pelt, of Lincoln, for plaintiff in error.

J. L. McPheely, Atty. Gen., and Lloyd Dort, Asst. Atty. Gen., for the State.

Heard before MORRISSEY, C. J., and DEAN, DAY, GOOD, THOMPSON, and EBERLY, JJ.

GOOD, J.

Defendant was convicted in the district court for Kearney county of the crime of sodomy upon Anna June Lynn, a little girl not quite five years of age. Defendant prosecuted error to this court, and the judgment of the district court was affirmed in Abbott v. State, 113 Neb. 517, 204 N. W. 74. The case is now before us on motion for rehearing. For a statement of the facts and issues, see Abbott v. State, supra.

[1] The information charged but a single act, and that it was committed on the 19th day of May, 1923. The evidence of the little girl was to the effect that the defendant committed the act on five different occasions, all of which were prior to the 19th of May, 1923. When this evidence was introduced, the defendant moved to require the state to elect upon which one of the several acts testified to the state would rely for a conviction. The motion was overruled. This point seems not to have been decided in the former opinion. No specific date was fixed by the little girl as to when any of the alleged acts occurred. It was impossible for the defendant to know which one of the acts he was required to meet, and it is uncertain upon which one of the acts testified to the verdict was founded. In fact, it is possible that some of the jurors may have believed it was the first; some, the last; and some, intermediate acts. Were another prosecution had for any of the acts, the defendant would not be enabled to plead the present prosecution in bar.

The general rule applicable to the situation is stated in Palin v. State, 38 Neb. 862, 57 N. W. 743, wherein it is held:

“Where a single crime is charged in an information, and the state on the trial, for the purpose of proving the offense alleged, introduces testimony tending to prove similar, but distinct crimes, the proper practice is for the accused to move the court to require the prosecutor to elect on which transaction he will rely for a conviction.”

We think that, under the rule, it was error to refuse to require the state to elect.

On the trial the state was permitted to introduce evidence, over objection, tending to show that 12 or 14 years prior to the act complained of defendant committed a similar offense on another person. In the former opinion, it is held:

“In a prosecution for sodomy, former instances tending to show that accused had indulged sexual depravity essential to an act like that charged may, in the discretion of the trial court, under exceptional circumstances, be admitted in evidence in connection with direct proof of his guilt.”

[2] We think that the rule stated is correct, but a careful re–examination of the record does not disclose any exceptional circumstances which would permit the evidence to be received. It is a general rule that, on the trial of a person accused of crime, proof of a distinct and independent offense, even of a similar nature, is inadmissible. Nickolizack v. State, 75...