Frank v. State
| Decision Date | 11 February 1949 |
| Docket Number | 32432. |
| Citation | 35 N.W.2d 816,150 Neb. 745 |
| Parties | FRANK v. STATE. |
| Court | Nebraska Supreme Court |
[Copyrighted Material Omitted]
Syllabus by the Court.
1. The information in a criminal case should contain a plain and concise statement of the charge against defendant, but all such necessary details may be set out therein, if without prejudice to substantial rights of defendant, as will enable the court to pass upon the question of whether or not it is sufficient to charge a criminal offense, and on the other hand be sufficient to inform defendant of all such facts as will correctly identify the entire transaction for which he is held to answer.
2. When words appear in an information which might be stricken out, leaving an offense sufficiently charged, and such words do not tend to negative any of the essential elements therein, they may be treated as surplusage and be entirely rejected.
3. It is better practice for the trial court in its instructions to state in concise and informal language the material elements which must be proved beyond a reasonable doubt to authorize conviction of an offense, rather than to copy the information verbatim in the instructions, but it is not reversible error to do so unless the information contains some allegation prejudicial to defendant.
4. A prosecuting attorney in a criminal case is a competent witness, but his function as prosecutor and as a witness must be disassociated. Therefore, if it is discovered before trial that he is a necessary witness, he should withdraw from any active participation as attorney and have other counsel prosecute the case.
5. It is improper in a criminal prosecution for the court to allow one who testifies as a witness to the principal facts to also as attorney conduct the trial in the examination of witnesses or argument to the jury, or to conduct himself in any manner inconsistent with his position as a witness or his interest as an officer of the state.
6. In such a case, whether or not he conducts himself in a manner consistent with his position as a witness or his interest as an officer of the state is primarily a question for the trial court to decide, but defendant has the right by competent evidence to appropriately have the record disclose the facts and circumstances relating thereto.
7. In cases wherein a woman charges a man with a sex offense immorality has a direct connection with veracity, and the accused is not restricted to proof of general reputation of prosecutrix for truth and veracity, but may adduce direct evidence of the general reputation of such witness for morality and may also adduce direct evidence not too remote in time of specific immoral or unchaste acts and conduct by her with others.
8. Such evidence is admissible not only for the purpose of being considered by the jury in deciding the weight and credibility of the testimony of prosecutrix but also as inferring the probability of consent, and to discredit her testimony relating to force and violence used by defendant in accomplishing his purpose and claimed resistance thereto by prosecutrix.
9. Upon a charge of assault with intent to commit rape, the two essential elements of an assault and an intent to commit the act charged must always co-exist and be established by the state beyond a reasonable doubt before defendant can be found guilty thereof.
10. The intention of accused must be not only to have intercourse with prosecutrix, but to do so by force, without consent, and notwithstanding her resistance.
11. Coupled therewith must be an effort by accused to carry out or accomplish such intent by the execution of an overt act amounting to an assault upon prosecutrix, i. e., an attempt with force and violence to overcome her resistance.
12. Force by accused, as distinguished from mere preparations, requests, and solicitations which are insufficient, and appropriate resistance thereto by prosecutrix, in cases wherein consent is an issue, are essential constituent parts of the offense, therefore consent or failure to resist when opportunity appears is an absolute defense in such cases and the jury should be so instructed.
13. Resistance by prosecutrix must be in good faith, to the utmost or limit of her ability, with the most vehement exercise of every physical means or faculty naturally within her power to prevent carnal knowledge, and she must persist in such resistance as long as she has the power to do so.
14. Where assault with intent to commit rape is charged, the testimony of prosecutrix must be corroborated by facts and circumstances established by other competent evidence to justify conviction.
15. Where in such cases prosecutrix testifies unequivocally to facts which would constitute the offense, a sufficient corroboration is shown if opportunity and inclination on the part of defendant to commit the offense are shown, and the circumstances proved by other witnesses tend to corroborate the testimony of prosecutrix.
16. Ordinarily, it is prejudicial error for the trial court to instruct the jury in a criminal case that they should not reject the testimony of any witness unless they first find it irreconcilable with other testimony which they find to be true, because when applied to the state's witnesses, the rule imposes a burden upon defendant which he is not required to assume.
Frank J. Reed, of Mitchell, for plaintiff in error.
Walter R. Johnson, Atty. Gen. and Leslie Boslaugh, Asst. Atty. Gen., for defendant in error.
HEARD before SIMMONS, C. J., PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.
An information filed in the district court for Kimball County charged in substance that on or about April 21, 1947, in said county, defendant, 'a male person of the age of eighteen years and upwards,' did feloniously assault Clara Buddecke, 'a female child of the age of seventeen years,' with the intent to commit rape upon her, which acts of defendant were contrary to the form of the statutes made and provided, and against the peace and dignity of the State of Nebraska. Upon defendant's plea of not guilty thereto, a jury found him guilty. His motion for new trial was overruled, and on December 27, 1947, he was sentenced to imprisonment in the State Reformatory for Men at Lincoln for a period of five years from that date.
Thereupon, defendant prosecuted error to this court, assigning many errors, but since the judgment is reversed and the cause remanded, only the following contentions require discussion and decision, to wit: (1) That it was predjucial error to allege the age of defendant and the age of prosecutrix in the information and include the same verbatim in instruction No. 2 given by the trial court; (2) that the trial court erred in permitting the county attorney to sit at the counsel table and participate in trial of the case before and after he had taken the witness stand as a witness for the state, and erred in sustaining the state's objections to defendant's evidence and offer to prove that the county attorney, after testifying, resumed his seat at the counsel table and continued to participate in the action as prosecuting attorney; (3) erred in the rejection of certain evidence offered by defendant; (4) erred in giving instructions Nos. 6, 9, and 10; and (5) that the state's evidence was insufficient to sustain the verdict and judgment. We conclude that the foregoing third and fourth contentions, and the last part of the second contention, should be sustained.
The material allegations of the information were in the equivalent words of section 28-409, R.S.1943, and thus amply sufficient to charge the crime of assault with intent to commit rape. Defendant did not contend otherwise either in brief or argument, but rather with reference to the first contention argued that setting forth the respective ages of the prosecutrix and defendant therein and copying the information verbatim in instruction No. 2 given by the trial court, was prejudicial error. We cannot so hold.
It will be noted that in the prosecution of cases wherein assault with intent to commit rape is pleaded, sections 28-408 and 28-409, R.S.1943, must be considered as in pari materia. Davis v. State, 31 Neb. 247, 47 N.W. 854; Hall v. State, 40 Neb. 320, 58 N.W. 929; Liebscher v. State, 69 Neb. 395, 95 N.W. 870, 5 Ann.Cas. 351.
Viewed in that light, the information herein did not allege that prosecutrix was previously chaste as required in such cases, although it alleged that she was but seventeen years of age. Hubert v. State, 74 Neb. 220, 104 N.W. 276, adhered to on rehearing 74 Neb. 226, 106 N.W. 774.
In such a situation, the state was required to prove beyond a reasonable doubt that defendant committed an assault upon prosecutrix with the intent to commit a rape upon her by force, without consent, and notwithstanding her resistance. Defendant was thus given the benefit of the defense of consent and want of resistance. It will be readily observed, then, that the allegations of age in the information were at most mere surplusage which could not have been prejudicial to defendant but rather beneficial to him.
It was held in Hase v. State, 74 Neb. 493, 105 N.W. 253: 'Where words appear in an information which might be stricken out, leaving an offense sufficiently charged, and such words do not tend to negative any of the essential averments therein, they may be treated as surplusage, and be entirely rejected.' See, also, sections 29-1501 and 29-1604, R.S.1943.
In Kirchman v. State, 122 Neb. 624, 241 N.W. 100, it was held: ...
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