Johnson v. State

• Decision Date: 23 October 1889
• Citation: 43 N.W. 425,27 Neb. 687
• Parties: JOHNSON v. STATE.
• Court: Nebraska Supreme Court

27 Neb. 687

43 N.W. 425

JOHNSON

v.STATE.

Supreme Court of Nebraska.

Oct. 23, 1889.

Syllabus by the Court.

1. To justify or sustain a verdict of guilty, the proof must reach that degree of certainty as to exclude reasonable doubt. It is not sufficient to show that the accused may be guilty, but it must clearly appear that he is guilty, of the specific offense charged.

2. Proof held insufficient to sustain the verdict.

3. Instructions set out in the opinion held to be erroneous.

Error to district court, Burt county; WAKELEY, Judge.H. Wade Gillis and George B. Lake, for plaintiff in error.

The Attorney General, for the State.

MAXWELL, J.

The plaintiff in error was convicted in the district court of Burt county of an assault with intent to commit a rape on his daughter Constance Johnson, and sentenced to imprisonment in the penitentiary. The offense is alleged to have been committed on the 24th of December, 1887, up-stairs at the house of the accused, near Oakland, in Burt county, between 5 and 6 o'clock P. M. of that day. The complaining witness made no mention of the alleged assault to any person for several months after it was said to have occurred. There were no marks upon her person, nor any evidence that an assault had been made, except her naked, unsupported statement, made many months after the time above set forth. She claims to have called her sister Annie from the kitchen, a child nine years of age, to the door of her room, and when she reached that point to have requested her to return to the kitchen. This witness, Annie, evidently had been instructed by some one in regard to her testimony, as she testifies with particularity to certain dates that a child of tender years would not notice or remember, unless instructed thereon. If the testimony of the prosecuting witness is true, her mother was in the room below, and a stove-pipe extended from a stove in her mother's room through the floor of the room up-stairs in which she alleges she and her father were; but she made no outcry. She also testifies that during the evening of that day she played on the organ, and sang for the entertainment of company, till about 11 o'clock P. M. The plaintiff in error testified in his own behalf, and denies that he was up-stairs at the time stated, or that his daughter was there, or that he then, or at any other time or place, attempted to commit the offense charged. Being the evening before Christmas, a number of persons were at the house of the accused, who testify “that he returned home about 5 P. M. of the day named, and that both he and his daughter were in the kitchen, and were not up-stairs, at the time alleged. In addition to this, a large number of the neighbors and acquaintances of the plaintiff in error, who have known him intimately for years, testified that his character for virtue and morality was good. Upon such testimony as this it is difficult to see upon what ground the jury could find a verdict of guilty. It is evident that they were misled, or allowed their prejudices to influence their action. The evidence required to authorize and sustain a conviction is not that the accused may be guilty, but it must reach that degree of certainty as to exclude reasonable doubt. This rule neither courts nor juries have a right to disregard. Every person is presumed to be innocent until proved to be guilty, and the degree of proof of guilt must be such as to render it morally certain that the accused committed the offense charged. In other words, to justify the laying of the heavy hand of the law upon a person, and branding him as a felon, and bringing disgrace upon him and his kindred, the proof must be of such a character as clearly to establish his guilt, and if it falls below that it is not sufficient. In the case at bar, if we give the testimony of the prosecutrix its full force and effect, there is a failure of proof of the degree of force necessary to constitute the offense. Neither is there proof of such an attempt as is contemplated by the statute. In Hicks v. Com., 9 S. E. Rep. 1024, the supreme court of Virginia, in considering an indictment charging the defendant with attempting to poison, with intent to kill, one A., by buying the poison and delivering it to one L., and soliciting her to administer it in coffee to A., say: “An attempt to commit a crime is compounded of two elements: (1) The intent to commit it; and (2) a direct, ineffectual act done towards it commission, (Code, § 3888; 2 Bish. Crim. Proc. § 71;) or, as Wharton defines it: ‘An attempt is an intended, apparent, unfinished crime.’ Therefore the act must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation. It must not be merely preparatory. In other words, while it need not be the last proximate act to the consummation of the offense attempted to be perpetrated, it must approach sufficiently near to it to stand either as the first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made. Uhl's Case, 6 Grat. 706;McDade v. People, 29 Mich. 50; Bouv. Law Dict. ‘Attempt.’ Thus it has been often held, under statutes similar to our own, that the purchase of a gun, with intent to commit murder, or the purchase of poison, with the same intent, does not constitute an indictable offense, because the act done in either case is considered as only in the nature of a preliminary preparation, and as not advancing the conduct of the accused beyond the sphere of mere intent. ‘To make the act an indictable attempt,’ says Wharton, ‘it must be a cause, as distinguished from a condition; and it must go so far that it would result in the crime, unless frustrated by...