Henderson v. State
| Decision Date | 19 November 1909 |
| Docket Number | No. 16,219.,16,219. |
| Citation | 123 N.W. 459,85 Neb. 444 |
| Parties | HENDERSON v. STATE. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
In prosecutions for rape, where the defendant testifies and unequivocally denies committing the offense, the testimony of the prosecutrix as to the main fact must be corroborated to uphold a conviction.
In such a case, after the prosecutrix has testified to a commission of the offense, it is competent to prove in corroboration of her testimony as to the main fact that, recently after the alleged outrage, she made complaint to those to whom a statement of such an occurrence would naturally be made; but on direct examination such testimony should be confined to the bare fact that complaint was made, and details of the event, including the identity of the person accused, are not proper subjects of inquiry, unless the complaint was a spontaneous unpremeditated statement so closely connected with the act as to be part of the res gestæ.
In the trial of a case for rape, it is error for the court to inform the jury that such a complaint is a corroborating circumstance, but the jury should be permitted to give it such weight in that regard as to them may seem proper.
Fitzgerald v. State, 78 Neb. 1, 110 N. W. 676, and Mott v. State, 83 Neb. 226, 119 N. W. 461, distinguished.
Error to District Court, Grant County; Hanna, Judge.
William Henderson was convicted of rape, and he brings error. Reversed and remanded.Harrison & Prince, for plaintiff in error.
William T. Thompson, for the State.
Plaintiff in error was convicted in the district court of Grant county of the crime of rape, charged to have been committed upon one Emma C. Biles, forcibly and against her will. Henderson testified in his own behalf, and admitted the fact of sexual intercourse, but stated that it was with the woman's consent. The woman made complaint to her husband about 20 hours after the event, and they were permitted, over defendant's objections, to testify to that fact. The court instructed the jury that, unless the prosecutrix was corroborated upon material points, they ought not to convict the defendant. Instruction numbered 12 was also given, and is as follows: “The jury are instructed that, if you believe from the evidence that the prosecuting witness told her husband of the assault alleged to have been made on her at the earliest opportunity, then that is a corroborating circumstance tending to sustain the truth of her statements.”
Defendant urges that the court thereby invaded the province of the jury, and that in no event could the prosecutrix by any act or statement of her own corroborate her testimony as to the criminal act. Fitzgerald v. State, 78 Neb. 1, 110 N. W. 676, is cited by the defendant. In that case the defendant was not arrested until after the prosecutrix gave birth to an illegitimate child, and theretofore she had made no complaint. The only evidence purporting to corroborate the prosecutrix was proof that about the time she became pregnant she was frequently in defendant's company. It was properly held that a conviction could not be sustained upon that state of facts because of the lack of corroborative evidence. Mott v. State, 83 Neb. 226, 119 N. W. 461, is also cited. In that case the prosecutrix made no complaint until in an advanced state of pregnancy. Upon a consideration of all of the facts in that case, it will be understood that the point now considered was not involved. The gist of that decision is that the testimony of the prosecutrix concerning independent collateral facts will not be received in corroboration of her testimony relative to the main fact. It was, furthermore, held that the evidence was insufficient to sustain the verdict.
In Garrison v. People, 6 Neb. 274, 283, we held that it was not error for the court to refuse to instruct the jury that it could not convict the defendant upon the unsupported testimony of the prosecutrix. In Mathews v. State, 19 Neb. 330, 336, 27 N. W. 234, 236, the attention of the profession was drawn to the fact that in Garrison v. People, supra, a bill of exceptions of the evidence had not been preserved, and that it was not intended in that case to hold that a conviction of rape would be sustained upon the testimony of the prosecutrix, if her sworn statements were disputed by other testimony, and “there were no marks upon her person or clothing showing a recent struggle, or no complaint as soon after the occurrence as an opportunity offered.” In Murphy v. State, 15 Neb. 383, 19 N. W. 489, the prosecutrix testified that the defendant, a colored man in her husband's employ, came into her room as she was packing a trunk, and ravished her. She made no complaint until after arriving in Burlington, Iowa, the next day. It was held that it was for the jury, in the light of explanatory evidence submitted by the state, to say whether her complaint under all of the circumstances should be considered in corroboration of the main fact testified to by her. In Wood v. State, 46 Neb. 58, 64 N. W. 355, it was held that such testimony may be received in corroboration of the main fact. So, also, in State v. Meyers, 46 Neb. 152, 64 N. W. 697, 37 L. R. A. 423, we held that such testimony may be received as corroborative, but not independent, evidence of the main fact. This view of the law is fully sustained in a discussion of the subject written by the lamented Maxwell, for many years a member of this court. 32 Cent. Law J. 102. But, while the injured female is permitted to show by her own testimony and that of others cognizant of the fact that she made complaint, we do not think that the details thereof, when not part of the res gestæ, should be received on her direct examination or as part of the state's case in chief. In Oleson v. State, 11 Neb. 276, 279, 9 N. W. 38, 40, 38 Am. Rep. 366, we accepted with approval Prof. Greenleaf's definition of the law of this subject; that is to say, that the prosecutrix may only be asked “whether she made...
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