Hammond v. State

• Decision Date: 07 February 1894
• Citation: 39 Neb. 252,58 N.W. 92
• Parties: HAMMOND v. STATE.
• Court: Nebraska Supreme Court

39 Neb. 252

58 N.W. 92

HAMMOND

v.STATE.

Supreme Court of Nebraska.

Feb. 7, 1894.

Syllabus by the Court.

1. A defendant in a criminal prosecution who has never been committed to jail or otherwise detained in custody is not entitled to be discharged, under the provisions of section 390 of the Criminal Code, on the ground that he has not been brought to trial before the end of the second term after the finding of the indictment or the filing of the information.

2. The provision of section 391 of the Criminal Code for the discharge of any person indicted who, after having given bail, shall not be brought to trial before the end of the third term of court held after the finding of such indictment, is held to exclude the term at which the indictment is found.

3. In a prosecution under section 11 of the Criminal Code for rape upon the daughter of the accused 14 years of age, an instruction that “the amount of struggle and resistance necessary to be shown is not the same in all cases. A strong, able-bodied woman could protect herself, when a child could not; and a father could overcome and subdue the will of his child, when a stranger could not,”--is not objectionable on the ground that it gives undue prominence to the age of the prosecutrix and her relation to the accused.

4. In a prosecution for rape it is not essential that the prosecutrix be corroborated by other witnesses as to the particular acts which constitute the offense. It is sufficient if she is corroborated as to material facts and circumstances which tend to support her testimony as to the principal fact, provided the jury must be satisfied from a consideration of all of the evidence beyond a reasonable doubt of the guilt of the accused. Fager v. State, 35 N. W. 195, 22 Neb. 332.

Error to district court, Lancaster county; Field, Judge.

Charles F. Hammond is convicted of rape, and brings error. Affirmed.

J. C. Johnston, O. W. Cromwell, and N. Rummons, for plaintiff in error.

Geo. H. Hastings, Atty. Gen., for the State.

POST, J.

At the September, 1891, term of the district court of Lancaster county, the plaintiff in error, Charles F. Hammond, was convicted of the crime of rape, as defined by section 11 of the Criminal Code, upon his daughter, Alta Maud Hammond, and has brought the case into this court for review upon exceptions taken to certain rulings of the trial court. The first of the errors assigned is the overruling of a motion to dismiss in the following language: “State of Nebraska vs. Charles F. Hammond. Defendant's Motion. Now comes the said Hammond, being first duly sworn, upon his oath says that he comes before the court, and moves the court here that he be discharged and released from arrest under the said information, for that the said information was filed in said court on the 15th day of September, 1890,--that being the first day of the September term, A. D. 1890, of our said court. That since said day there has been an October term, 1890, of said court, and a January term, A. D. 1891, of said court, and that said cause has been pending longer than to the third term of the said court held after the said information was filed. That the delay of the trial of said cause did not happen upon the application of this defendant, and was not occasioned by the want of time to try the same, and through no fault of his; and, under and by virtue of section 390 and section 391 of the Code of Criminal Procedure of the state of Nebraska, affiant should be discharged from the offense alleged in said information, and be permitted to go hence without day. That this cause has not been legally reinstated, and cannot be so without new information and indictment, which same has not been found, nor information filed.” Sections 390 and 391, referred to in the motion, are as follows: 390. “If any person indicted for any offense and committed to prison shall not be brought to trial before the end of the second term of the court having jurisdiction of the offense, which shall be held after such indictment found, he shall be entitled to be discharged so far as relates to the offense for which he was committed, unless the delay shall happen on application of the prisoner.” 391. “If any person indicted for any offense, who has given bail for his appearance, shall not be brought to trial before the end of the third term of the court in which the cause is pending, held after such indictment is found, he shall be entitled to be discharged, so far as relates to such offense, unless the delay happen to be on his application, or be occasioned by the want of time to try such cause at such third term.” It is shown by the transcript that the information was filed on the 15th day of September, 1890, which was the first day of the September term. On the following day the accused was arraigned, and entered a plea of not guilty. On the 9th day of February, 1891, which was the first day of the February term, the case was stricken from the docket on motion of the county attorney, with leave to reinstate upon the showing of sufficient cause therefor, and the sureties on the recognizance of the accused were discharged and released from further liability. On the 12th day of October, 1891, which was the nineteenth day of the September, 1891, term, the following order was entered of record: “State of Nebraska vs. Charles Hammond. Now, on this day, came the county attorney, on behalf of the state of Nebraska, and, having made proper showing in compliance with the order entered herein on the 9th day of February, 1891, on his motion, it is by the court ordered that this cause be, and the same hereby is, reinstated on the docket of this court, and that a capias issue for the said defendant in the manner provided by law.” It is evident that the accused was not entitled to be discharged under the provisions of section 390, since it does not appear from the transcript that he was at any time subsequent to the filing of the information confined in the jail of the county, or otherwise detained...