Henry v. State

• Decision Date: 09 June 1939
• Docket Number: 30662.
• Citation: 286 N.W. 338,136 Neb. 454
• Parties: HENRY v. STATE.
• Court: Nebraska Supreme Court

286 N.W. 338

136 Neb. 454

HENRY v. STATE.

No. 30662.

Supreme Court of Nebraska.

June 9, 1939

Syllabus by the Court.

1. Except as to crimes having an element of motive, criminal intent, or guilty knowledge, evidence of separate and distinct crimes committed by the accused is not admissible.

2. In a prosecution for incest, it is reversible error to admit evidence, over objection, of separate and distinct crimes committed by the accused against a female other than the prosecutrix.

Error to District Court, Lancaster County; Chappell, Judge.

Roy Henry was convicted of the crime of incest, and he brings error.

Judgment reversed.

Charles H. Flansburg, of Lincoln, for plaintiff in error.

Walter R. Johnson, Atty. Gen., and C. S. Beck, Asst. Atty. Gen., for the State.

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

CARTER, Justice.

The defendant was convicted of the crime of incest with his daughter, Fern Henry. From the verdict and judgment of the court imposing sentence, the defendant brings the case by error proceedings to this court.

The state was permitted to call one Hazel Jones as a witness, who testified that she expected to be delivered of an illegitimate child within a few days and that the defendant was the father of her unborn child. It appears from the record that the pregnant condition of this witness was obvious to the jury. The defendant contends that the ad mission of this evidence over objection was prejudicial error.

We are convinced that in prosecution for incest it is reversible error to receive evidence, over objection, of separate and distinct crimes committed by the accused against a female other than the prosecutrix. Except as to crimes having an element of motive, criminal intent, or guilty knowledge, evidence of separate and distinct crimes committed by the accused is not admissible. Swogger v. State, 116 Neb. 563, 218 N.W. 416; Crawford v. State, 116 Neb. 629, 218 N.W. 421; Doerffler v. State, 129 Neb. 720, 262 N.W. 678.Clearly, the elements of the crime of incest do not include motive, criminal intent, or guilty knowledge.

In Leahy v. State, 31 Neb. 566, 48 N.W. 390, 391, the accused was cross-examined as to a similar attempted rape made by the accused on a girl other than the prosecutrix on the day following his alleged attack on the prosecutrix. This court in discussing the admissibility of this evidence said " That this statement, and the attending circumstances, were of the most prejudicial character, cannot be doubted. The second offense, if committed, was entirely disconnected with the first. The fact that Miss B. was summoned as a witness by the state, and sitting in plain view in the courtroom,...