Callies v. State, 33399

• Decision Date: 20 November 1953
• Docket Number: No. 33399,33399
• Citation: 157 Neb. 640,61 N.W.2d 370
• Parties: CALLIES v. STATE.
• Court: Nebraska Supreme Court

Page 370

61 N.W.2d 370

157 Neb. 640

CALLIES v. STATE.

No. 33399.

Supreme Court of Nebraska.

Nov. 20, 1953.

Syllabus by the Court.

1. It is only when there is a total failure of proof in a criminal case to support a material allegation in the information, or where the testimony adduced is of so weak or doubtful a character that a conviction based thereon could not be sustained, that the trial court will be justified in directing a verdict of not guilty.

2. Whoever aids, abets, or procures another to commit any offense may be prosecuted and punished as if he were the principal offender.

3. A common purpose among two or more persons to commit a crime need not be shown by positive evidence but may be inferred from the circumstances surrounding the act and from the defendant's conduct subsequent thereto.

4. Knowledge or intent is seldom capable of direct proof. It is usually inferred from the proven surrounding circumstances. Participation in criminal intent may be inferred from presence, companionship, and conduct before and after the offense is committed.

5. A district court, within its district, is authorized to exercise the powers of examining magistrates generally, with respect to preliminary hearings of persons accused of the commission of a felony.

6. The rule is that peremptory challenges are not to be exercised until the jurors have been passed for cause and 12 persons are in the jury box having the qualifications of jurors.

7. Otherwise the course of procedure with regard to peremptory challenges is left to the sound discretion of the trial court, and its decision will not be disturbed unless it clearly appears that there has been an abuse of discretion prejudicial to the defendant.

8. Certified copies of public records belonging to any public office are evidence of those matters which are properly shown therein and may be explained by the custodian of the records when a proper foundation is laid for the admission of such testimony.

9. When a witness has been previously examined in open court with the opportunity for cross-examination which has been availed of, and the witness cannot be produced at the trial, the evidence so given at the preliminary hearing for the same offense may be used at the trial, providing there is evidence of diligent search and inquiry as to the whereabouts of the witness and his unavailability to testify, which is required as a foundation for the admission of such testimony.

10. Great latitude should be allowed in the cross-examination of an accomplice who testifies for the State on a trial of his associates. He must disclose all that he and his associates have said or done in relation to the offense, and may be required to disclose whether he had been promised leniency or immunity for testifying.

11. In the prosecution for a crime such as aiding and abetting statutory rape, great latitude should be allowed in cross-examination of the prosecuting witness. Such witness may be cross-examined with reference to matters pertinent to the issues in the case concerning which she has testified to or referred to in her direct examination, and as to matters bearing upon her credibility and the weight to be given her testimony.

12. In a prosecution for aiding and abetting the crime of statutory rape, a female child under 15 years of age cannot ordinarily be cross-examined with reference to her consent, it being immaterial, or with regard to previous unchaste acts with others for the purpose of testing her credibility.

13. Instructions are to be considered together, to the end that they may be properly understood, and, when so construed, if as a whole they fairly state the law applicable to the evidence, error cannot be predicated on the giving of the same.

L. M. Clinton, Sidney, for plaintiff in error.

Clarence S. Beck, Atty. Gen., Homer L. Kyle, Asst. Atty. Gen., for defendant in error.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

MESSMORE, Justice.

Maurice Callies was charged in the district court for Deuel County with aiding and abetting Dale Sherrick to commit statutory rape on one Janice Irene Sneith. The jury returned a verdict finding defendant guilty as charged, and recommended leniency. The defendant filed a motion for new trial which was overruled. The trial court committed him to the State Institution for Boys at Kearney, Nebraska, until he reaches the age of 21 or is discharged by the institution. He brings this error proceeding to this court to review his conviction and sentence.

The plaintiff in error will hereafter be referred to as the defendant.

At the conclusion of the State's evidence and at the conclusion of all of the evidence the defendant moved for a directed verdict, which was overruled. This ruling is assigned as error. The contention of the defendant is that the evidence is wholly insufficient to convict the defendant of the crime charged, beyond a reasonable doubt, and that there was a lack of competent evidence as to the age of the principal, Dale Sherrick.

To determine the above assignment of error we set forth a resume of the evidence adduced at the trial.

The prosecutrix, Janice Irene Sneith, testified that she was born September 26, 1938, and that she attended Chappell high school. On October 8, 1952, when walking home from school with Irene Nelson, she saw the defendant, accompanied by Dave Carleton and Dale Sherrick, in an automobile driven by Dave Carleton. At several crossings she was asked by the defendant if she wanted to take a ride. She replied 'no,' and later said that she had to go home and take care of her little brother. The car stopped at a point and in such a manner as to block her path. The defendant got out of the car, grabbed her, put her arms behind her back, and forced her over to the car. He picked her up and put her in the car, and she 'hollered' for Irene. At the direction of the defendant the car was driven north of Chappell to the golf course. At the golf course the defendant and Dale Sherrick had intercourse with her. In both instances the act was complete. The defendant held her so she could not move while Dale Sherrick had intercourse with her. After about 30 or 40 minutes she requested Dave Carleton to drive her home. She was let out of the car at an alley within half a block of her home. When she arrived home her mother was not there. She informed her mother the next evening of what had occurred. The next day she told her sister Carol about the affair while Carol, Irene Nelson, and the prosecutrix were walking home from school.

In her cross-examination, she testified that she had met the defendant about a year previous, on Christmas Eve, that she had known Dale Sherrick about the same length of time, and Dave Carleton for about a year. She told about her position while the acts of intercourse were being carried on, the position of the boys in the back and front seats of the car during the time, the length of time they were there, and what occurred.

She was corroborated by Irene Nelson's testimony as to the manner in which she was picked up and the conversation had with her sister Carol in Irene's presence. Irene told her brother of the happening and had him go and tell Janice's mother.

The motion of the prosecutrix testified that she had been informed the evening of October 8, 1952, that Janice had been picked up by some boys. She was not at home at the time Janice arrived there, but noticed when she arrived that Janice looked pale and did not seem to be her usual self. She was unable to talk to Janice about the affair that evening due to the presence of her small son. The next day she inspected Janice's garments; they were soiled and the straps of the slip were broken. She notified the city police, and on October 31st, took Janice to a doctor for the purpose of ascertaining whether or not she was pregnant.

Dave Carleton's testimony corroborated that of the prosecutrix in almost all details. The variance in the testimony of the prosecutrix and this witness is of minor importance and need not be set out.

The defendant testified that he was born on August 25, 1936, and resided with his mother at Lodgepole, Nebraska. He further testified that he went to Chappell in Dave Carleton's car with Dale Sherrick. Dave was doing the driving. While in Chappell they saw Janice and Irene Nelson. Dave asked the defendant if he wanted to see if they could pick them up. The defendant siad he did not care. Dale Sherrick said it did not make any difference to him. The defendant testified that he then asked Janice if she wanted to take a ride and she said 'no.' He described the course they took in following Janice. When the car stopped he stepped out of it, walked up to Janice, put his arms around her, and asked her if she wanted to go for a ride. She said she would for a little while, but she had to be back at 5 p. m. Then he told of the position of the different parties in the car as they rode to the golf course. He denied that he lifted her up and put her in the car, and that he told Dave where to drive. When the car stopped at the golf course, he testified, he started necking Janice, teasing her, and playing with her slip strap or brassiere strap; that they kissed each other, and she put her arms around him and kissed him; and that this continued for 5 or 10 minutes. He asked her if he could have intercourse with her and she said 'no.' Then he described the position that she placed herself in. He again asked her the same question. He testified to partially undressing Janice, at her request, and other matters incident to the act, the position that Janice was lying in at the time, the conversation had with Dale Sherrick with reference to having intercourse with Janice and with reference to a request by Janice to be driven home, the position of the parties in the car on leaving the golf course, and letting Janice out at the place she requested.

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