Guerin v. State

• Decision Date: 10 December 1940
• Docket Number: 31011.
• Citation: 295 N.W. 274,138 Neb. 724
• Parties: GUERIN v. STATE.
• Court: Nebraska Supreme Court

295 N.W. 274

138 Neb. 724

GUERIN v. STATE.

No. 31011.

Supreme Court of Nebraska.

December 10, 1940

Syllabus by the Court.

1. Challenged information approved in form and substance.

2. In absence of instruction requested to that end, it is not error on part of trial court to fail to instruct as to a lesser crime involved in and incident to a greater, as, for instance, assault and battery or simple assault, in connection with forcible rape.

3. The record for review, consisting of a duly certified transcript and a bill of exceptions duly allowed, implies absolute verity and can in no manner be altered or added to through the medium of briefs on appeal.

4. The giving of an instruction not challenged in the motion for new trial is not reviewable in a proceeding in error.

5. " Where the evidence in a criminal case is acutely conflicting, and from its consideration different minds may reasonably arrive at different conclusions, the weight to be given thereto is a question for the jury." Norton v State, 119 Neb. 588, 230 N.W. 438.

6. " The credibility of witnesses is alone for the jury and the interest of any witness is proper to be considered in weighing his testimony." Clary v. State, 61 Neb. 688, 85 N.W. 897.

7. Evidence in the record examined, and held sufficient to sustain the conviction.

Error to District Court, Douglas County; Sears, Judge.

Jack Guerin was convicted on an information charging him with making an assault upon and forcibly and feloniously ravishing and carnally knowing a certain party, and he brings error.

Affirmed and sentence reduced.

Henry R. Meissner and Anderson & Meissner, all of Omaha, for plaintiff in error.

Walter R. Johnson, Atty. Gen., and Don Kelley, Asst. Atty. Gen., for defendant in error.

Heard before SIMMONS, C. J., ROSE, EBERLY, PAINE, CARTER, and MESSMORE, JJ., and TEWELL, District Judge.

EBERLY, Justice.

The plaintiff in error, Jack Guerin, herein referred to as defendant, aged twenty-five years, was convicted and sentenced to be imprisoned for the period of fifteen years in the Nebraska state penitentiary, upon an information, duly presented by the county attorney for Douglas county, Nebraska, which omitting formal parts, charged and set forth, viz.: " That on or about the 5th day of November in the year of our Lord one thousand nine hundred thirty-nine Jack Guerin late of the county of Douglas aforesaid, in the county of Douglas and state of Nebraska aforesaid, then and there being, then and there in and upon one Dorothy Beasley unlawfully, feloniously and violently did make an assault, and her, the said Dorothy Beasley, then and there unlawfully, feloniously, forcibly, violently and against her will, feloniously did ravish and carnally know, she, the said Dorothy Beasley, then and there not being the sister or daughter of him, the said Jack Guerin."

From the judgment of the district court overruling his motion for a new trial, the defendant prosecutes error to this court.

The defendant challenges the information upon which he was tried and convicted because of improper joinder therein of a charge of rape with a charge of assault with intent to commit rape.

A charge of rape necessarily includes a charge of assault to commit rape, for " the crime of rape cannot be committed without an assault with that intent. The latter is necessarily included in the greater crime." Dawson v. State, 96 Neb. 777, 148 N.W. 957, 958.See, also, Comp.St. 1929, § 28-408.

It is therefore obvious that defendant's substantial rights have not been seriously impaired. It may be said, however, that the form of charge here employed has been approved as proper and sufficient for more than half a century in the courts of this state. Maxwell, Criminal Procedure, 2d Ed., 239.

The defendant also challenges the correctness of the proceeding and insists that the court committed reversible error in failing to instruct on the subjects of assault and battery and simple assault. The record of the proceedings had in the district court in this case, however, fails to dis close that any request for such instructions was made by the defendant during the trial. In the absence of a request, it is not error for the court not to instruct on assault and battery and simple assault, where the defendant is on trial for rape. Dawson v. State, 96 Neb. 777, 148 N.W. 957; Beer v. State, 129 Neb. 366, 261 N.W. 824; Williams v. State, 113 Neb. 606, 204 N.W. 64; McIntyre v. State, 116 Neb. 600, 218 N.W. 401.

The defendant further...