Dunn v. State
| Decision Date | 21 June 1899 |
| Citation | 79 N.W. 719,58 Neb. 807 |
| Parties | DUNN v. STATE. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. Evidence examined, and found sufficient to sustain the verdict.
2. An information whose caption is, “State of Nebraska, Greeley County--ss.,” and which charges that a designated crime was committed “in said county and state aforesaid,” alleges the venue with sufficient certainty.
3. Identity of name ordinarily affords a presumption of identity of person, and, where the name of the victim of a criminal assault is the same in two counts of an information, the law presumes that the reference in both counts is to the same person.
4. An instruction is not erroneous which, in substance, informs the jury that a conviction on either count of an information would be warranted only by proof beyond a reasonable doubt of the essential elements of the crime charged in such count, and that there might be a conviction on one count and an acquittal on the other.
5. For the purpose of illustrating the proposition that in prosecutions for rape the measure of the woman's resistance need not be in all cases the same, it is not error for the court to say to the jury, irrespective of the facts of the particular case, that “a strong, able-bodied woman could protect herself, when a girl fourteen years old could not.”
6. It is not essential, in a trial for the crime of rape, that the prosecutrix be corroborated by direct evidence of the particular fact constituting the crime. Proof of incriminating circumstances and corroborative facts is sufficient, and an instruction which so states the law is not erroneous.
7. To warrant a conviction for an assault with intent to commit a rape, the evidence must show beyond a reasonable doubt that the accused at the time intended to use whatever force might be necessary to overcome all resistance and accomplish his purpose.
8. Two paragraphs of a charge to the jury--one immediately following the other--will be considered together, and treated as one, when they relate to a particular phase of the case, and each is plainly complemental of the other.
9. After a jury in a criminal case has been once informed that there can be no conviction without proof beyond a reasonable doubt, and that their conclusion should be based on the evidence, the failure to reiterate such statements in other paragraphs of the charge is not error.
10. A party cannot reserve his objection to a question calling for incompetent testimony until the answer of the witness has been received. Such reservation is deemed a waiver of the right to object.
11. In a prosecution for rape, evidence of the conduct and exclamations of the prosecutrix, tending to show that she was sick and lame for several days after the assault, is competent.
Error to district court, Greeley county; Thompson, Judge.
John Dunn was convicted of crime, and brings error. Affirmed.Doyle & Lanigan, for plaintiff in error.
C. J. Smyth, Atty. Gen., and W. D. Oldham, Dep. Atty. Gen., for the State.
There are two counts in the information. In the first, the defendant, John Dunn, is charged with the ravishment of Louise J. 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, Ev. § 99; State v. Kelsoe, 76 Mo. 505;State v. McGuire, 87 Mo. 642;People v. Rolfe, 61 Cal. 541;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 criticised 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 commonplace fact, it is difficult to see how it...
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