Fager v. State

• Decision Date: 10 November 1887
• Citation: 22 Neb. 332,35 N.W. 195
• Parties: FAGER v. STATE.
• Court: Nebraska Supreme Court

22 Neb. 332

35 N.W. 195

FAGER

v.STATE.

Supreme Court of Nebraska.

November 10, 1887.

Syllabus by the Court.

In a prosecution for rape it is not essential to a conviction that the prosecutrix should be corroborated by the testimony of other witnesses as to the particular act constituting the offense. It is sufficient if she be corroborated as to material facts and circumstances which tend to support her testimony, and from which, together with her testimony as to the principal fact, the inference of guilt may be drawn.

While it is the right of a trial judge to interrogate witnesses when essential to the administration of justice, yet the practice of so doing, except when absolutely necessary, should be discouraged. The common-law rule conferring arbitrary power upon trial judges has been so far modified by the Code and the advanced civilization of the age as to greatly limit the power, and in case of its abuse a reviewing court would not hesitate to give a new trial to the unsuccessful party.

Where it is claimed that improper testimony was allowed to be given to a jury in the trial of a cause, it must appear by the bill of exceptions that objection thereto was made, upon which there was an adverse ruling, and to which exception was taken at the time, otherwise it cannot be reviewed in the supreme court.

Error from district court, Saline county; MORRIS, Judge.

E. S. Abbott and R. D. Stearns, for plaintiff.

The Attorney General, for defendant.

REESE, J.

Plaintiff in error was convicted of the crime of rape. The record is quite voluminous, and were we inclined to go outside of the questions presented for decision, it is quite probable sufficient objection might be found to justify the reversal of the judgment of the district court; but as it has been the uniform holding of this court that it will not travel outside the case presented by the counsel, except when the question of jurisdiction is involved, or in favor of life, we can notice only questions presented for decision.

It is insisted by plaintiff in error that there is no proof of rape, or even of contact, except that of the prosecutrix. While this is true in one sense, yet in the sense in which corroborating circumstances may aid the prosecutrix it is not true. We do not understand the rule in such cases to require corroborating testimony to the positive fact of the rape. If such were required, convictions could seldom be had, even in the most flagrant cases. Men engaged in the commission of offenses of this kind seldom call witnesses to the fact, or attack women who are not alone and within their power.

The testimony shows that plaintiff in error was engaged in collecting cream for a creamery in the neighborhood in which the prosecutrix resided, and that prior to the time of the alleged crime, when getting cream of the family with whom the prosecutrix resided, they had met and knew each other. The prosecutrix was a girl about 14 1/2 years old, and resided with the family of A. J. Miller. Her younger sister resided near by, with the family of C. A. Helms. Miller and his family were away from home in York county, to be absent at least overnight. Helms and his wife were also away from home, and returned late in the evening on which the crime was alleged to have been committed. By the testimony of the witness Munson, who resided with Helms, and who was acquainted with plaintiff in error, it is shown that plaintiff in error went to the house of Helms on the evening in question in a covered buggy, hitched his horse, went to where Mr. Munson was, and asked where Mr. Miller was. Upon being informed that he was in York county, he then inquired where Iva Smith, the prosecutrix, was. Munson informed him she was there and in the house. He then told Munson there was to be a party at Mr. Parks' that night, and they wanted her to come down, and requested Munson to see her and inform her of what he said. Munson remarked he did not think she would come, as Miller was “pretty strict with her,” but he would tell her. She was informed, and, after some hesitation, got into the buggy, and went with plaintiff in error; going first to Miller's and changing her clothing.

A. J Miller testified that soon after the occurrence he, with Mr. and Mrs. Helms and Mr. Munson, went with the prosecutrix to the spot where she claimed the crime had been committed, and there found horse's tracks south of the road, as she had stated, and from the appearance of the tracks in the grass it was evident the horse had stood there for some little time. These facts are also testified to by others who observed the same things.

Mr. Helms testified that he was in Dorchester on the afternoon of the day in question, and saw plaintiff in error with a horse of the kind testified to by Munson, hitched to a covered buggy, going north, which was in the direction in which Mr. Helms lived. This was about one-half hour before sundown. Late in the evening Mr. Helms went home, and, as he supposes, about 9 or 10 o'clock, when within a mile or so from home, he met plaintiff in error in a buggy driving rapidly to the south. The witness thought at this time that some person was with plaintiff in error in the buggy, but as to who it was, if any such were there, witness could not tell.

Another witness, Mr. J. M. Johnson, met plaintiff in error the same night, somewhat later, about a mile north of Dorchester, driving south, towards town, with a horse and buggy of the same description as that given by the other witnesses, and, as was the case with Mr Helms, plaintiff in error did not give the road, and a collision seemed imminent. Mr. Johnson spoke to the horse, and he stopped. Plaintiff in error was alone, and appeared to be asleep. The witness says, “I slapped him on the face with my hat.” He said, “There, get out, or pull out.”

The testimony of these witnesses, all of whom were acquainted with plaintiff in error, when added to the positive testimony of the prosecutrix, who also knew him, leaves no doubt whatever upon the mind as to his identity.

The theory presented by the plaintiff in error is, to the mind of the writer, entirely improbable. He admits that probably it was the horse and buggy, but denies that it was himself. He claims that he started upon an errand, and went some two or three miles out of Dorchester, where he overtook a young man, who claimed he had been at work for a neighbor, and took him into the buggy; that the young man had a bottle of liquor, out of which plaintiff in error took a drink or two, and that upon reaching the timber of the West Blue river he was drunk; that the young man left him there asleep, and went away with the horse and buggy; that after a while the young man returned, helped plaintiff in error into the buggy, and sent him home about midnight. While this is pressed with considerable ingenuity by counsel, yet we cannot adopt it. The testimony of Munson is clear, direct, and positive, and we can see no reason why it is not entitled to credit.

It is next claimed that the testimony of the prosecutrix as to what happened at the time of the alleged commission of the offense is unsatisfactory, and in some important matters contradictory. In some respects this is true, and indeed it could hardly be expected to be otherwise. The testimony of the witness occupies 36 printed pages of the record. Her cross-examination was rigid, searching, and of great length, and when coming to minute details of the perpetration of the crime, in her efforts to detail, in answer to the questions, she made some statements which may seem unreasonable. It is hardly probable that a girl of her age and want of experience would form proper conceptions of what was done, or just how it was done, and be able to detail them upon the witness stand without apparent contradictions, resulting from lack of a clear understanding of the question, or some other cause. By a fair analysis of her testimony, however, many seeming contradictions are more apparent than real. The examination in chief was not skillfully conducted, many of the interrogatories embodying three or four questions, the last of which was, very naturally, answered by her, while those preceding it were left unanswered. The order of events was necessarily lost sight of by her, and she was placed in the attitude of answering many questions which might be applied to any stage of the transaction. The cross-examination of course tended to increase these...