Harris v. State
| Decision Date | 05 December 1907 |
| Docket Number | 15,439 |
| Citation | 114 N.W. 168,80 Neb. 195 |
| Parties | CALVIN HARRIS v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Lancaster county. LINCOLN FROST JUDGE. Affirmed.
AFFIRMED.
Billingsley & Greene, for plaintiff in error.
W. T Thompson, Attorney General, and Grant G. Martin, contra.
The plaintiff in error, who was the defendant in the court below and who will be so designated in this opinion, was convicted in the district court for Lancaster county of the crime of statutory rape, and brings the case here for review.
His first contention is that the evidence is not sufficient to sustain the verdict, because there was no testimony introduced by the state corroborating the story of the prosecutrix. We learn from the record that the prosecutrix was the stepdaughter of the defendant; that he married her mother on the third day of July, 1900, and since that time she has been a member of his family. She testified, in substance, that she was born on the 26th day of July, 1891; that in the first part of the month of May, 1906, the defendant came into her room at their home in Lancaster county, Nebraska, and insisted on having sexual intercourse with her; that she finally consented, and he thereupon accomplished his purpose; that she became pregnant therefrom, and was delivered of her child on the 20th day of February following. Without going into details, it may be said that if her evidence is to be believed it is sufficient to establish defendant's guilt beyond a reasonable doubt. It further appears that she was examined by a reputable physician about the first of January, 1907, who testified that she was then pregnant with an eight months foetus; that she was a fully developed woman, and presented the appearance of having had a great deal of sexual intercourse. The evidence also shows that before the birth of her child, and before the defendant was arrested, there was a conversation between the defendant, the prosecutrix and her mother in the office of the county attorney, in the presence of that officer and of two other persons; that in that conversation the mother taxed the defendant with being the author of the condition of the prosecutrix, which he denied, and, thereupon, the prosecutrix, becoming somewhat excited, charged him with being the author of her downfall, called his attention to a number of different times and places where he had had sexual intercourse with her, and the defendant remained silent and made no denial of her statement. It also appears that the defendant procured various kinds of medicines or nostrums, commonly used to cause menstruation or produce abortion in the early stages of pregnancy, and furnished them to the prosecutrix. This he did not deny, but explained the matter by saying that he procured them at the request of his wife. The prosecutrix testified that she knew nothing about that matter, and, as the wife was not permitted to testify, his explanation was left without denial. It further appears, however, that, when the defendant was confronted with the charge, he wanted to know if there was not some way in which it could be fixed up or settled. He stated, in the presence of the prosecuting attorney and two or three other persons, that he would give his property, all he had, and more too, if he could get it settled up. Again, the fact was plainly shown that the prosecutrix had never at any time been in the company of other men or boys; that her associations with the defendant were such as to afford ample opportunity for sexual intercourse between them; and so, taking all of the evidence together, it would seem that there was sufficient corroboration of the testimony of the prosecutrix to warrant the court in submitting the question of the defendant's guilt or innocence to the jury, and their finding on that question should not be disturbed by a court of review.
It is further contended that the court erred in refusing to give the third instruction requested by the defendant. This request related to the necessity for corroboration. While it may be said for the instruction that it was substantially correct, yet, the court having instructed upon that question on his own motion, it was not error to refuse the defendant's request. The record shows that the instruction given by the court was in form and substance like the one given and approved in Fager v. State, 22 Neb. 332, 35 N.W. 195, Hammond v. State, 39 Neb. 252, 58 N.W. 92, and Dunn v. State, 58 Neb. 807, 79 N.W. 719. So it is clear that the defendant was deprived of none of his substantial rights by the court's refusal to give the instruction requested.
It is also claimed that the court failed to submit the question of the previous chastity of the prosecutrix to the jury, and it is contended that such failure is prejudicial error. The only competent evidence of the age of the prosecutrix which we find in the record shows that she was born on the 26th day of July, 1891; that the act of sexual intercourse complained of took place between her and the defendant in the early...
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