Haynes v. State

• Citation: 288 N.W. 382,137 Neb. 69
• Decision Date: 10 November 1939
• Docket Number: 30588.
• Parties: HAYNES v. STATE.
• Court: Supreme Court of Nebraska

288 N.W. 382

137 Neb. 69

HAYNES v. STATE.

No. 30588.

Supreme Court of Nebraska.

November 10, 1939

Syllabus by the Court.

1. " In a prosecution for rape, it is not essential to a conviction that the prosecutrix should be corroborated by the testimony of other witnesses as to the particular act constituting the offense. It is sufficient if she be corroborated as to material facts and circumstances which tend to support her testimony, and from which, together with her testimony as to the principal fact, the inference of guilt may be drawn." Fager v. State, 22 Neb 332, 35 N.W. 195.

2. In a prosecution for rape where no request for such an instruction is made, it is not error for the trial court to fail to instruct on the lesser included offenses.

3. In a prosecution for rape, it is not prejudicial error for the trial court to set out verbatim in his instructions the charging part of the information, where the court follows that instruction with an instruction in its own language as to the material elements of the offense.

Error to District Court, Lincoln County; Tewell, Judge.

Lloyd E. Haynes was convicted of assault with intent to commit rape, and he brings error.

Judgment modified and, as modified, affirmed.

Beatty, Maupin, Murphy & Davis, of North Platte, for plaintiff in error.

Walter R. Johnson, Atty. Gen., and Rush C. Clarke, Asst. Atty. Gen., for the State.

Heard before SIMMONS, C. J., EBERLY, PAINE, CARTER, MESSMORE, and JOHNSEN, JJ.

SIMMONS, Chief Justice.

The defendant, aged 31, was convicted of assault with intent to commit rape upon a female child 12 years of age. He was sentenced to the penitentiary for a period of 15 years. He brings proceedings in error here.

Defendant's first contention is that the evidence is insufficient to support the verdict of the jury. It will not be of advantage to the parties involved to set out a detailed abstract of the evidence. The crime is alleged to have been committed during the early morning of June 22, 1938, on a side road leading from one of the main traveled highways in Lincoln county, Nebraska. There is no dispute but that the defendant, the complaining witness, and her older sister were together for a period of time immediately preceding the commission of the alleged offense, and that he was alone with the complaining witness at the scene of and at the time of the alleged offense. The complaining witness testified in detail as to the assault. While the defendant denies the act, her testimony is fully corroborated as to material facts and circumstances. Her physical condition, as indicated by examinations of reputable physicians, also supports her testimony. The evidence is sufficient to support the verdict of the jury.

This court has held: " In a prosecution for rape it is not essential to a conviction that the prosecutrix should be corroborated by the testimony of other witnesses as to the particular act constituting the offense. It is sufficient if she be corroborated as to material facts and circumstances which tend to support her testimony, and from which, together with her testimony as to the principal fact, the inference of guilt may be drawn." Fager v. State, 22 Neb. 332, 35 N.W. 195.See Kotouc v. State, 104 Neb. 580, 178 N.W. 174; Robbins v. State, 106 Neb. 423, 184 N.W. 53; Mayo v. State, 127 Neb. 227, 254 N.W. 887; Beer v. State, 129 Neb. 366, 261 N.W. 824.

The defendant next contends that the trial court failed to instruct the jury on the lesser offenses of assault and assault and battery. It is admitted that a request for such an instruction was not made. It was not error on the part of the trial court to fail to charge as to the lesser offenses in the absence of such a request. McConnell v. State, 77 Neb. 773, 110 N.W. 666; Williams v. State, 113 Neb. 606, 204 N.W. 64; McIntyre v. State, 116 Neb. 600, 218 N.W. 401; Beer v. State, supra.

The information in this case contained five counts. At the close of the state's case, upon motion of the defendant, the first, second, and third counts were dismissed, and the court ruled that counts 4 and 5 would be tried as one count. In its instructions, the court set out verbatim the charging parts of counts 4 and 5, and instructed the jury that the...