Cascio v. State
| Decision Date | 07 February 1947 |
| Docket Number | 32129. |
| Citation | 25 N.W.2d 897,147 Neb. 1075 |
| Parties | CASCIO v. STATE. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. In a prosecution for rape, competent evidence must show beyond a reasonable doubt not only that defendant committed the act charged but that he did so under such circumstances that every element of the alleged offense existed, and where the evidence fails to meet that test, it is insufficient to support a conviction.
2. In a prosecution for rape, it is not essential that prosecutrix be corroborated by other witnesses as to the particular acts which constitute the offense. It is sufficient if she is corroborated as to material facts and circumstances which tend to support her testimony as to the principal fact, provided the jury must be satisfied from a consideration of all the evidence beyond a reasonable doubt of the guilt of the accused.
3. However, in such cases if the testimony of the prosecutrix as to the particular acts allegedly constituting the offense may all be true and still the act not have been against her will or if her testimony in that regard is so inconsistent contradictory, improbable, or incredible as to be selfdestructive, and the corroborating evidence is of a doubtful character or wholly lacking in probative force or value, a judgment of conviction will be set aside for want of sufficient evidence to sustain it.
Eugene D. O'Sullivan and William E. Lovely both of Omaha, for plaintiff in error.
Walter R. Johnson, Atty. Gen., and Erwin A. Jones, Asst. Atty. Gen., for defendant in error.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ., and ANKENY, District Judge.
A jury found plaintiff in error, hereinafter called defendant, guilty of rape. He was seventeen years old at the time of the alleged offense. The prosecutrix was then twenty years old, and without mental or physical disability. Defendant's motion for new trial was overruled, and the trial court sentenced him to serve eight years imprisonment in the State Reformatory, from which he prosecuted error to this court. His assignments of error are several in number, but in our view of the case, decision requires discussion of only the question of whether or not the evidence was legally sufficient to sustain the verdict and judgment. In doing so, we decide that the evidence was insufficient to establish beyond a reasonable doubt that defendant had carnal knowledge of the prosecutrix, forcibly and against her will.
This court has always recognized the age-old admonition of Sir Mathew Hale that 'It is true rape is a most detestable crime, and therefore ought severely and impartially to be punished * * * but it must be remembered that it is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, the never so innocent,' and that courts should 'be the more cautious upon trials of offenses of this nature.' In the light thereof, courts have generally exercised great care and vigilance to insure that a verdict of conviction was supported by sufficient competent evidence and not the result of passion and prejudice, inspired by the wiles of a malicious contriver or the very heinousness of the offense charged. See 1 Hale, P.C., p. 634; Mathews v. State, 19 Neb. 330, 27 N.W. 234; Whomble v. State, 143 Neb. 667, 10 N.W.2d 627.
In a prosecution for rape, competent evidence must show beyond a reasonable doubt not only that defendant committed the act charged, but that he did so under such circumstances that every element of the alleged offense existed, and where the evidence fails to meet that test, it is insufficient to support a conviction. 52 C.J., Rape, s. 118, p. 1087; 44 Am.Jur., Rape, s. 64, p. 936; Oleson v. State, 11 Neb. 276, 9 N.W. 38, 38 Am.Rep. 366; Mathews v. State, supra; Vaughn v. State, 78 Neb. 317, 110 N.W. 992; Whomble v. State, supra.
In the case at bar, prosecutrix was above the age of consent as defined by statute. Therefore, the elements of the offense, which must be so established beyond a reasonable doubt, are not only that defendant had carnal knowledge of the prosecutrix but that he did so forcibly and against her will. That defendant had carnal knowledge of the prosecutrix is without dispute. The question is whether it was without her consent, that is whether it was accomplished by the constructive force of threats and fear or by actual physical force, which overcame actual good-faith resistance on her part.
The general rule is that where carnal knowledge is accomplished after a woman yields because of fear caused by threats of immediate great bodily injury or death, the consummated act is rape. Ordinarily, in such cases actual physical force upon the body of the woman by the accused and actual physical resistance thereto by her are not required, even when the woman is capable of consent. Nevertheless, in cases where the woman is above the age of consent and mentally competent, the threats made to her must be such as to create a reasonable apprehension or fear of great bodily harm and they must be accompanied by a demonstration of brutal force or a dangerous weapon or by other apparent power of execution, and when the prosecution seeks to prove rape by threats and fear, it must be shown by competent evidence beyond a reasonable doubt, that such threats were made under such circumstances as would cause the prosecutrix to yield. 52 C.J., Rape, s. 32, p. 1024, s. 128, p. 1095; Richards v. State, 36 Neb. 17, 53 N.W. 1027; State v. Morrison, 189 Iowa 1027, 179 N.W. 321.
In the absence of sufficient proof of threats and fear, proof beyond a reasonable doubt of want of consent, that is, of actual force by the man with actual good-faith resistance thereto by the woman, is always essential to support a conviction. 52 C.J., Rape, s. 125, p. 1091; Mathews v. State, supra; Oleson v. State, supra; Richards v. State, supra.
That is true because carnal knowledge, with the voluntary consent of the woman, no matter how tardily given or how much force had hitherto been imposed, is not rape. Stated in another way, voluntary submission by the woman while she has the power to resist, no matter how reluctantly yielded, removes from the act an essential element of the crime of rape. In other words, in the absence of threats and fear, force is a necessary element of the offense and the carnal knowledge must be accomplished by actual force of the man with resistance thereto by the woman if she be physically and mentally able to do so. 52 C.J., Rape, s. 26, p. 1016, s. 28, p. 1018; Reynolds v. State, 27 Neb. 90, 42 N.W. 903, 20 Am.St.Rep. 659.
The degree of force required is relative, depending upon the particular circumstances, but in any such case it must be sufficient to subject and put the dissenting woman within the power of the man, and thus enable him to have carnal knowledge of her notwithstanding good-faith resistance on her part. In that connection, whether carnal knowledge was forcibly and against her will or with her consent, is ordinarily indicated by resistance or lack of it by the woman. While the degree of resistance required is also relative, depending upon the particular circumstances, the general rule is that a mentally competent woman must in good faith resist to the utmost with the most vehement exercise of every physical means or faculty naturally within her power to prevent carnal knowledge, and she must persist in...
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