Blair v. State
| Citation | 101 N.W. 17,72 Neb. 501 |
| Parties | BLAIR v. STATE. |
| Decision Date | 20 October 1904 |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. When an information contains two or more counts charging distinct and separate offenses of the same nature, the trial court may, in the exercise of a sound discretion, require the county attorney to elect on which count he will rely for a conviction, either before the commencement of the trial, or after the state has produced its evidence in chief, and before the accused is required to make his defense.
2. Record examined, and held, that the defendant's motion to quash the second and third counts of the information was properly overruled.
3. Evidence contained in the bill of exceptions examined, and found sufficient to resist the demurrer of the defendant thereto, and his motion to require the court to direct the jury to return a verdict in his favor.
4. Held, that the record discloses no reversible error in receiving and rejecting evidence.
5. Evidence is relevant which shows that the accused has threatened or assaulted a witness, has endeavored to prevail on him to abscond, has procured his absence, has endeavored to induce him to testify falsely, or has concealed the whereabouts of such witness from the prosecution; and such conduct on the part of an accused person is an incriminating circumstance to be weighed by the jury in determining the question of his guilt.
6. In a prosecution for statutory rape, frequent acts of improper familiarity between the parties implicated may be received in evidence to prove their adulterous disposition towards each other.
7. The trial court may, to a reasonable extent, permit leading questions to be propounded, on direct examination, to a hostile or reluctant witness.
8. Record examined, and held, that defendant's application for a continuance, after the prosecutrix had changed her evidence, was properly denied.
9. It is within the sound discretion of the trial court to permit a party, in furtherance of justice, to reopen his case and introduce other and further evidence at any time before the close of the trial; and where it is made to appear that there has been no abuse of discretion, and the substantial rights of the opposite party have been in no manner prejudiced by such a course, error cannot be predicated thereon.
10. An objection to the appearance of private counsel to assist the county attorney in conducting a criminal prosecution, to be available, should be made at a suitable time and in the proper manner, and must be supported by at least some showing that the county attorney did not request or require any assistance, and the court had not appointed such counsel for that purpose.
11. Held, that a general objection to the appearance of such counsel made during the trial, in connection with the examination of a witness, and without any showing to support it, was properly overruled.
12. The fact that a single clause of an instruction is incomplete is not sufficient ground for a reversal, if, when the whole paragraph is read and construed together, its meaning is clear and certain, and it appears from the record that the jury could not have been misled thereby.
13. Evidence reviewed, and held sufficient to sustain the verdict.
Error to District Court, York County Evans, Judge.
John Blair was convicted of crime, and brings error. Affirmed.George B. France, for plaintiff in error.
Frank N. Prout, Atty. Gen., and Norris Brown, Dep. Atty. Gen., for the State.
The state prosecuted John Blair in the district court of York county on a charge of statutory rape. The trial resulted in a conviction, and the court sentenced him to be confined in the state penitentiary for a period of three years. From such conviction and judgment the defendant brings error.
The information contained three counts, in each of which the state attempted to charge the accused with the crime of statutory rape, committed on the person of one Beulah Thomas, who was alleged to be a female child under 18 years of age. In the first count the date of the alleged sexual intercourse was stated to be June 1, 1901, in the second count the time alleged was January 4, 1903, and in the third count the date named was February 5, 1903. Before going to trial the defendant filed a motion to require the state to elect on which count it would prosecute. The court at that time reserved his decision, but when the state had introduced its evidence in chief the motion was sustained, and the county attorney elected to rely for a conviction on the third count of the information.
Counsel for the defendant contended that the failure of the court to require an election before the trial commenced was reversible error. In some jurisdictions it is held that, where the indictment or information charged two or more distinct and separate felonies, the prosecutor should be required to elect on which count or charge he will rely for a conviction, before going to trial. But most of the courts hold that a number of separate and distinct felonies, all of which may be tried in the same manner, which are of the same general character, which require for their proof evidence of the same kind, and the punishment for which is of the same nature, may be charged in separate counts of one information, and the party thus charged may be placed on trial for all of such counts at the same time; that the matter of requiring an election in such cases is left to the sound discretion of the trial court, to be exercised when the state has submitted its evidence in chief, and before the accused is put on his defense. This rule is sustained by the great weight of authority in this country. Maxwell's Criminal Procedure, 550, 551; Wharton's Criminal Pleading & Practice, §§ 295, 296; Korth v. State, 46 Neb. 631, 65 N. W. 792;State v. Hodges (Kan. Sup.) 26 Pac. 676;Roberts v. People (Colo. Sup.) 17 Pac. 637;State v. Crimmins, 31 Kan. 376, 2 Pac. 574;State v. Schweiter, 27 Kan. 499;Commonwealth v. Jacobs (Mass.) 25 N. E. 463;State v. King (Iowa) 91 N. W. 768;Bailey v. State, 4 Ohio St. 441.
We are firmly committed to the rule last above stated, and so it only remains for us to determine whether the court was guilty of an abuse of discretion in not requiring the prosecutor to elect on which count he would rely until after he had produced his evidence in chief. The record discloses that, although it was charged in the first count that the act of sexual intercourse took place on the 1st day of June, 1901, and in the second count that the offense therein described was committed on the 4th day of January, 1903, the state introduced no evidence establishing, or tending to establish, either of these counts. In fact, the record clearly shows that no attempt was made to prove the commission of any offense other than the one on which the state elected to rely for a conviction. This being the case, the fact that the state was not required to elect until after it had introduced its evidence in chief resulted in no prejudice to any of the defendant's substantial rights. It therefore follows that the court was guilty of no abuse of discretion.
The defendant insists that the court erred in refusing to quash the second and third counts of the information, and also in overruling his motion to quash the third count after the state had introduced its evidence and rested. And it is contended that the state having charged in the first count that the offense described therein was committed on the 1st day of June, 1901, the second and third counts, in which the dates of the offenses charged were alleged as of January 4 and February 5, 1903, failed to state any offense, because, if the charge contained in the first count was true, the prosecutrix could not have been chaste at the times last above mentioned. In the first place, an examination of the first count shows that the facts alleged therein were not sufficient to constitute the crime of statutory rape. Therefore it stated no offense, and, even if that count had stated an offense, it appears that the state had no proof, or at least offered none, to sustain it. For these reasons the allegations of the first count could in no way affect the charges contained in the other two. Again, when the state elected to rely on the third count for a conviction, the second count was as completely eliminated from the case as though it had never been set forth in the information. It follows that, when the accused was required to present his defense, the information, in legal effect, contained only the third count, and stood precisely as though it had never contained any other. That count was sufficient in form and substance to charge the offense of statutory rape, and on that count, and no other, the jury returned a verdict of guilty. Again, it was held in Bailey v. State, 57 Neb. 706, 78 N. W. 284, 73 Am. St. Rep. 540, that the defendant cannot plead his own defilement of the girl within the statute of limitations as a defense to a later defilement. The court said: “Had the first defilement of the girl by the prisoner occurred in Nebraska instead of Iowa, on the date it did, and which was prior to the one charged in the indictment, then the first defilement would be no defense to the prisoner on an indictment for the second, since both would have been within the statute of limitations, and each intercourse a part of the crime charged in the indictment.” For these reasons it is apparent that the court did not err in overruling the defendant's motion to quash.
It is further contended that the court erred in overruling defendant's demurrer to the state's evidence. It is true that, when the state first rested, the prosecutrix had by her evidence denied that the defendant had sexual intercourse with her at any time. But taking into consideration the testimony of her mother, in which she related the fact of having caught the defendant and her daughter in a compromising position in the barn on the 5th day of ...
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