Dunn v. State
| Decision Date | 21 June 1899 |
| Docket Number | 10705 |
| Citation | 79 N.W. 719,58 Neb. 807 |
| Parties | JOHN DUNN v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Greeley county. Tried below before THOMPSON, J. Affirmed.
AFFIRMED.
Doyle & Lanigan, for plaintiff in error.
C. J Smyth, Attorney General, and W. D. Oldham, Deputy Attorney General, for the state.
There are two counts in the information. In the first the defendant John Dunn is charged with the ravishment of Louise I. Lund in the second he is charged with a felonious attempt to ravish her. The trial resulted in an acquittal on the first count and a conviction on the second. We will not discuss the evidence, for it would serve no useful purpose to do so. That it is sufficient to sustain the verdict in favor of the state, we entertain no sort of doubt; and we may add that if the defendant had been found guilty of rape, we should not disturb the verdict on account of any weakness in the proof.
The first count of the information was unsuccessfully assailed by a motion to quash and a general demurrer. It is now contended that there was no averment that the crime therein alleged was committed within the territorial jurisdiction of the court. The caption of the information is: "State of Nebraska, Greeley County, ss." Then follows a recital that James R. Swain is county attorney of Greeley county, and an allegation that the defendant, "in said county and state aforesaid," committed the offense. This was sufficient to fix the venue. The caption was by reference incorporated into and made a part of the information. The precise point was raised and decided in Bartley v. State, 53 Neb. 310, 73 N.W. 744. In that case NORVAL, J., delivering the opinion, said:
By special demurrer, and also by a motion to require the state to elect upon which count it would proceed to trial, the defendant challenged the authority of the court to try him on both charges. The argument is that the information contains no direct averment that the victim of the felonious assault and the victim of the rape was the same person. The evidence given on the trial having shown conclusively that both counts relate to the same transaction, the point is not of real importance; but if it were, the identity of name would afford a presumption of identity of person and justify the ruling of the district court. (1 Jones, Evidence sec. 99; State v. Kelsoe, 76 Mo. 505; State v. McGuire, 87 Mo. 642; People v. Rolfe, 61 Cal. 540; Campbell v. Wallace, 46 Mich. 320, 9 N.W. 432.)
It is asserted that the third paragraph of the court's charge to the jury assumes that the defendant committed the crime described in the second count. The language in question is as follows: "You are instructed that the burden rests upon the state to prove every material allegation in each count in the information beyond a reasonable doubt, and unless the allegations are so proven you cannot find the defendant guilty upon such count as is not so proven; but if you should find that it was not so proven upon the first count, but was so proven upon the second count, in that case your verdict would be guilty upon the second count of the information." This instruction is not artistically framed, but its plain import is that conviction of the crime charged in either count would be warranted only by proof beyond reasonable doubt of the essential elements of such crime, and that there might, according to the finding of the jury, be a conviction on one count and an acquittal on the other. To extract any other meaning from it requires a ruthless distortion of the text.
Exception is taken to the following language found in the tenth paragraph of the charge to the jury: "A strong, able-bodied woman could protect herself when a girl fourteen years old could not." The statement is criticized as being inapplicable, because the evidence disclosed no striking disparity of age, intelligence, or physical development between the prosecutrix and the accused. The sentence quoted, standing alone, would seem to be incapable of mischief. Being the suggestion of a common-place fact, it is difficult to see how it could have beguiled an intelligent jury into error. It was designed merely to illustrate the proposition that the measure of resistance required of the woman is not necessarily the same in all cases. In its proper environment it was certainly harmless. ( Richards v. State, 36 Neb. 17, 53 N.W. 1027; Thompson v. State, 44 Neb. 366, 62 N.W. 1060; People v. Connor, 27 N.E. 252.)
The court said to the jury in the eleventh paragraph of the instructions: "You are instructed that in the case of rape it is not essential that the prosecutrix should be corroborated by the testimony of other witnesses as to the particular act constituting the offense, and if the jury believe from the testimony of the prosecutrix and the corroborating circumstances and facts testified to by other witnesses, that the defendant did make the assault as charged, * * * the law would not require that the testimony of the prosecutrix should be corroborated by other witnesses as to what transpired at the immediate time and place when it is alleged the assault was made." The vice imputed to this instruction is that it told the jury that they might convict the defendant without any evidence corroborating the testimony of the prosecutrix in regard to the alleged criminal act. While the law in this class of cases requires that the prosecutrix shall be corroborated, it does not demand that the corroboration shall be by direct evidence of the particular fact constituting the crime. Proof of incriminating circumstances is sufficient. (Krum v. State, 19 Neb. 728, 28 N.W. 278; Fager v. State, 22 Neb. 332, 35 N.W. 195; Hammond v. State, 39 Neb. 252, 58 N.W. 92.) This is exactly the idea which the instruction conveys. It is not susceptible, we think, of any other reasonable interpretation.
The giving of the twelfth and thirteenth...
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