Fager v. State
| Decision Date | 21 October 1896 |
| Parties | FAGER v. STATE. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. It is within the discretion of the trial judge to permit the names of additional witnesses to be indorsed by the county attorney on the information after the filing thereof, and before the trial.
2. Evidence contradictory of the statements of a prosecuting witness may be met by statements in rebuttal of such contradictory statements, even though the names of the witnesses giving the rebutting testimony may have never been indorsed on the information.
3. When the evidence entirely fails to show an offense of a less degree than that charged in the information, it is not prejudicial error to omit to give an instruction defining an offense of such less degree.
4. It will not be presumed that the indorsement of the words “rape and incest,” in connection with the word “information,” was prejudicial to the accused, when such words aptly summarized the facts stated within the information, and the attention of the trial court had been in no way directed to the words complained of.
Error to district court, Lancaster county; Holmes, Judge.
John Fager was convicted of crime, and brings error. Affirmed.Wm. Leese, for plaintiff in error.
A. S. Churchill, Atty. Gen., and Geo. A. Day, Dep. Atty. Gen., for the State.
On June 29, 1895, there was duly filed in the district court of Lancaster county an information wherein the plaintiff in error in this court was charged with ravishing and carnally knowing Hattie Fager on the 15th day of March, 1895, she then and there being his daughter, as he well knew. A plea of not guilty was entered to this information, and upon a trial of the issues thus presented the accused was found guilty of the crime charged in the information. In accordance with the express provisions of the statute in such cases he was sentenced to be imprisoned in the penitentiary for the remainder of his life.
The first point urged in the brief of the plaintiff in error was that the verdict was not sustained by sufficient evidence. In view of the severity of the punishment fixed by the statute in this class of cases, a very careful consideration of the evidence has been made, with the result that this contention cannot be sustained. It would subserve no useful purpose to review the disgusting details of his crime, and they shall therefore remain unstated.
It is argued that the victim made no resistance or outcry, and that, therefore, there was no rape by violence or putting in fear. This conclusion would be justified by the consideration of the evidence of some of the witnesses alone, but it would necessitate the exclusion of the testimony of Hattie herself, for she testified both to resistance and to an outcry. She also testified that immediately after the commission of the offense she informed her mother and her brother of the facts, and the further contention that she did not do this cannot be accepted as incontestably established by the proofs.
Complaint is made that the district court permitted the names of three witnesses to be indorsed on the information before the trial of this case began. The record simply recites the following proceedings, to wit: “Now, on this day, came the county attorney on behalf of the state of Nebraska, and asks, and is by the court granted, leave to indorse on the information the names of Frank Leighton, Fred Miller, and Henry Miller, and C. I. Woodward as witnesses on behalf of the state of Nebraska.” It has...
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State v. Nolan
...120 P. 835; State v. Wilmbusse, 8 Idaho 608, 70 P. 849.) Our statute on this particular question is taken from Nebraska. (Fager v. State, 49 Neb. 439, 68 N.W. 611; v. State, 61 Neb. 604, 85 N.W. 844, 845.) Courts now permit the use of general questions by the prosecutor for the purpose of e......
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State v. Martin
...an offense of such less degree.' " State v. Tamburano, 201 Neb. 703, 706-07, 271 N.W.2d 472, 474 (1978), quoting Fager v. State, 49 Neb. 439, 68 N.W. 611 (1896); State v. Vicars, 207 Neb. 325, 299 N.W.2d 421 On the robbery count, the defendant argues that because the purse was taken from th......
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Strong v. State
...purpose. The defendant is clearly guilty of a felonious assault, or he is entirely innocent; and, as Commissioner RYAN remarked in Fager v. State, supra, the instruction "could have subserved no purpose except to suggest a compromise verdict, --an alternative which juries are, perhaps, suff......
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Strong v. State
...the present case the instruction requested was properly refused, because there was no evidence to which it was applicable. Fager v. State, 49 Neb. 439, 68 N. W. 611;State v. Robb, 90 Mo. 30, 2 S. W. 1. The prosecutrix, Caroline Hansen, was, beyond all question, the victim of a felonious ass......