Comstock v. State

• Decision Date: 22 March 1883
• Citation: 15 N.W. 355,14 Neb. 205
• Parties: CHARLES P. COMSTOCK, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

15 N.W. 355

14 Neb. 205

CHARLES P. COMSTOCK, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR

Supreme Court of Nebraska

March 22, 1883

THIS was an indictment for rape committed upon one Coral Comstock daughter of the defendant. The trial below before POST, J. in the district court for York county, resulted in a verdict of guilty, and sentence of prisoner to imprisonment in penitentiary for life, to reverse which he prosecuted this writ of error.

AFFIRMED.

O. P Mason, George B. France, and Sedgwick & Powers, for plaintiff in error.

Affidavits for continuance were sufficient. Jameson v. Butler, 1 Neb. 118. Johnson v. Dinsmore, 11 Neb. 393. Williams v. The State, 6 Neb. 337. The evidence as to parentage was inadmissible. 1 Greenleaf, sec. 103. There must be both penetration and emission. Russell on Crimes, 685, note. Rex v. Russell, 1 M. & R. 122. Williams v. The State, 14 Ohio 226. Blackburn v. The State, 22 Ohio St. 110. Warren's Ohio Criminal Code, 250. Prosecutrix must appear to have resisted to the full extent of her ability. Oleson v. The State, 11 Neb. 276.

C. J. Dilworth, Attorney-General, for the State.

OPINION

LAKE, CH. J.

A large number of errors are assigned, but we shall consider only those which are referred to by counsel for the prisoner in their brief.

The first of these is a refusal of the court to grant a continuance on account of absent witnesses. There was no error in the ruling of the court on this question. The affidavit on which the motion to continue was based was clearly insufficient, according to the most approved rule of criminal practice in such cases.

The affidavit was that of the prisoner himself. All but two of the witnesses desired were non-residents of the state, and their whereabouts unknown to affiant, except that he had been recently "informed," but by whom he does not say, that they were somewhere in the states of Illinois and Michigan. The two witnesses in this state resided, as affiant "learned," about a week before, in Harlan county, but from whom he learned this, or whether the information was credible, does not appear.

When an affidavit for continuance is based upon information derived from others, it should give their names and whereabouts, and also sufficient reason for not procuring their own affidavits to the facts communicated, which should be done if possible. Being at least but hearsay testimony, the greatest particularity is due to the court, and must be observed. The motion for a continuance was properly overruled. Williams v. State, 6 Neb. 334.

The next objection is to the ruling of the court on the admission of evidence. The prosecuting witness was asked what relation she bore to the prisoner, and answered that she was his daughter. It is claimed that this was incompetent testimony, for the reason that the fact of her parentage was one of which necessarily she could know nothing except as hearsay.

We do not regard this objection as sound. It is certainly competent for one who, from his earliest recollection, has been a member of one's family, given his name, and reared in the belief, and in all ways given to understand that he is a son in the household, to testify of his parentage. His testimony may not be satisfactory or conclusive of the fact, but it is at least admissible for what it is worth in the minds of the jury, and clearly sufficient to make a prima facie case, thus throwing the burden of overcoming it upon him who controverts it. To so rear a child, is in the nature of an admission of parentage, and should be so regarded.

The next question was raised by an exception to an instruction given to the jury, by which they were told that the prosecution was not "required to prove emission" to make out the crime of rape.

By our statute rape consists of the "carnal knowledge" of a woman, "forcibly and against her will." Of the proof of "carnal knowledge," Greenleaf in his work on Evidence, vol. 3 § 210, says: "It was formerly held, though with considerable conflict of opinion, that there must be evidence both of penetration and injection. But the doubts on this subject were put at rest in England by the statute of Geo. IV., c. 31, which enacted that the former of the two acts was sufficient to constitute the offense. Statutes to the same effect have been passed in some of the United States. But as the essence of the crime consists in the violence done to the person of the sufferer, and to her sense of honor and virtue, these statutes are to be regarded merely as declaratory of the common law, as it has been held by the most eminent...