Centoamore v. State
| Decision Date | 23 December 1920 |
| Docket Number | 21473 |
| Citation | 181 N.W. 182,105 Neb. 452 |
| Parties | FRANK CENTOAMORE v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Douglas county: ALEXANDER C. TROUP JUDGE. Reversed.
REVERSED AND REMANDED.
C. W Britt, for plaintiff in error.
Clarence A. Davis, Attorney General, and J. B. Barnes, contra.
Defendant was convicted of statutory rape.
Error is predicated upon a ruling of the court excluding evidence offered by defendant of statements made by the prosecuting witness to the deputy county attorney to the effect that the defendant had not committed an assault upon her.
Testimony had been introduced showing that the prosecuting witness was an Italian girl, 14 years of age, that her father had betrothed her to defendant, and that the offense complained of was committed about the last week of August, 1919. The exact date of the offense charged was never definitely fixed. The information filed in the case gave the time as September 25. Testimony was introduced of a physical examination made on September 13, and this examination, the doctor testified, indicated that intercourse had taken place within the previous 24 or 48 hours.
About this time the father of the prosecuting witness was arrested, on the complaint of the defendant here, upon a charge of incest committed upon his daughter. At that time both the father and the defendant were held by the county attorney. The prosecuting witness consulted with the deputy county attorney, and following the interview the father was held on the charge, and this defendant allowed to go. On September 25 the father was kicked by a horse and died, and afterwards this prosecution was commenced against the defendant here.
During the trial of this case the defendant offered to show by the testimony of the deputy county attorney that the prosecuting witness, at the interview just above mentioned, informed that official that the father was guilty, and that the defendant had not committed an assault upon her. This testimony was material as bearing upon the credibility of the complaining witness and as bearing directly upon the question of the guilt of the accused. The objection to the offer was sustained upon the ground that the statements, having been made by the complaining witness to the deputy county attorney, were privileged communications.
It is the general rule, especially applicable in proceedings collateral to the pending criminal action, that such communications, made to the prosecuting officer, are privileged. 40 Cyc. 2369. Though the relation of attorney and client can hardly be said to exist between the prosecuting witness and the officer, since such officer is acting as the attorney for the state, and the witness is not, literally speaking, his client, the rule is based, rather, upon the broad ground of public policy and is established as a means of fostering and promoting a free and unimpeded administration of the criminal law. It is a matter of public concern that every citizen should be allowed, and that it be his duty, to freely communicate to such officers any and all information which he may have of violations of criminal law, and, as an encouragement to the unembarrassed exercise of that duty, as well as for the protection of the informant, the law throws about the information given an enforced secrecy.
The rule has been rigidly enforced in cases such as malicious prosecution and slander, brought against the informant, and based on alleged false statements made to the prosecuting officer. Vogel v. Gruaz, 110 U.S. 311, 28 L.Ed. 158, 4 S.Ct. 12; Oliver v. Pate, 43 Ind. 132; Gabriel v. McMullin, 127 Iowa 426, 103 N.W. 355; Michael v. Matson, 81 Kan. 360, 105 P. 537; Worthington v. Scribner, 109 Mass. 487.
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