Bridges v. State

• Decision Date: 21 November 1907
• Docket Number: 15,168
• Citation: Bridges v. State, 80 Neb. 91, 113 N.W. 1048 (Neb. 1907)
• Parties: JOHN P. BRIDGES v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

113 N.W. 1048

80 Neb. 91

JOHN P. BRIDGES v. STATE OF NEBRASKA

No. 15,168

Supreme Court of Nebraska

November 21, 1907

ERROR to the district court for Otoe county: PAUL JESSEN, JUDGE. Affirmed.

AFFIRMED.

C. W Seymour and John C. Watson, for plaintiff in error.

W. T Thompson, Attorney General, and Grant G. Martin, contra.

OPINION

BARNES, J.

The defendant below was convicted of the crime of incest, and has brought the case here by petition in error.

The information contained three counts. The first charged the defendant with what is commonly called statutory rape; the second count contained a charge of rape as defined by the common law, with an additional allegation that the victim was the defendant's daughter; while the third count charged him with the crime of incest as defined by section 203 of the criminal code. The defendant filed a motion to quash the information for duplicity. The state thereupon elected to proceed to trial upon the third count alone, and the motion was therefore overruled. The jury returned a verdict of "guilty, as charged in the information," and the defendant assigns error for that the verdict does not respond to the count of the information on which the prosecution elected to go to trial. It is insisted, under the rule announced in Williams v. State, 6 Neb. 334, that where there are distinct offenses charged in different counts of the information, as in the case at bar, the jury must either return a general verdict of not guilty, or respond specially to each charge in the information. Since the decision in Ford v. State, 79 Neb. 309, 112 N.W. 606, the above rule has been abrogated in this state, for Williams v. State, supra, and Casey v. State, 20 Neb. 138, 29 N.W. 264, were expressly overruled by that decision. The rule by which this question is now governed is, where several counts are included in the same information, a conviction on one count may be sustained, although the jury ignore the others; and a judgment upon one of several counts, with no verdict as to the others, operates as an acquittal on the other counts. Again, as above stated, the defendant was prosecuted upon the third count of the information, which charged a violation of the provisions of section 203 of the criminal code, and by the instructions of the court it was made plain that the charge contained in that count was the one to which the verdict of the jury must respond. So, for the purpose of the trial, the case stood as though there was only one count contained in the information, and the verdict of guilty, as charged, clearly responded to that count.

It is next contended that the trial court erred in overruling defendant's challenge of the juror Meyer for cause. It appears that Meyer had read the newspaper accounts of the transaction, and for that reason alone had an impression or opinion as to the guilt or innocence of the defendant, which he said would require some evidence to remove. The juror further stated that the fact that any one was accused of having committed so heinous a crime would, to a certain extent, create in his mind a prejudice against him. However, in response to questions propounded by the court, the juror clearly stated that his impression or opinion was founded solely on newspaper accounts, and, if retained as a juror, his impression so formed would not interfere with his rendering a fair and impartial verdict upon the evidence and the instructions of the court. It seems clear, therefore, that the juror brought himself within the rule announced in Bohanan v. State, 18 Neb. 57, 24 N.W. 390, Basye v. State, 45 Neb. 261, 277, 63 N.W. 811, Bolln v. State, 51 Neb. 581, 71 N.W. 444, and Barker v. State, 73 Neb. 469, 103 N.W. 71. The challenge, therefore, was properly overruled.

It is further contended that the court erred in giving the first and second paragraphs of his instructions, for the reason that they treated the information and all of its counts as an entirety. We do not so understand them. They clearly defined the crime charged in the count on which the defendant was prosecuted, and by the third paragraph of the instructions the jury were plainly told that in order to find the defendant guilty the state must prove all of the elements of the crime (describing them as set forth in that count) beyond a reasonable doubt. So it is apparent that the jury were not misled by the instructions complained of.

Complaint is also made of the giving of the seventh instruction, which treats of the necessity for...