Jump v. State

• Decision Date: 02 November 1945
• Docket Number: 32000.
• Citation: 20 N.W.2d 375,146 Neb. 501
• Parties: JUMP v. STATE.
• Court: Nebraska Supreme Court

20 N.W.2d 375

146 Neb. 501

JUMP v. STATE.

No. 32000.

Supreme Court of Nebraska

November 2, 1945

Syllabus by the Court.

1. In a prosecution for rape, the prosecutrix may testify in chief, if within a reasonable time under all the circumstances after the act was committed she made complaint to another, to the fact and nature of the complaint, but not as to its details; and that other may likewise testify in chief to such fact and nature of the complaint, but not as to its details.

2. In a prosecution for rape under section 28-408, R.S.1943, if it satisfactorily appears from the evidence that the prosecutrix is not the sister or daughter of the accused, a conviction will not be reversed because no witness testified in direct language to those facts.

3. The evidence has been examined and found sufficient as to resistance to sustain the verdict.

4. The sentence is found excessive and reduced by authority of section 29-2308, R.S.1943.

Dryden & Jensen, of Kearney, for plaintiff in error.

Walter R. Johnson, Atty. Gen., and Homer L. Kyle, Asst. Atty. Gen for defendant in error.

Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER CHAPPELL, and WENKE, JJ.

SIMMONS Chief Justice.

Plaintiff in error, herein called the defendant, was charged with the rape of one Agnes Martin, in violation of the provisions of section 28-408, R.S.1943. He was tried, found guilty and sentenced to imprisonment for a period of sixteen years. He appeals. We reduce the sentence and as so modified affirm the judgment of the trial court.

Defendant assigns as error: (1) The admission in evidence of statements of the prosecuting witness made to third parties not in the presence of the defendant; (2) that no proof was offered or received that the prosecuting witness was not the sister or the daughter of the accused, and the failure to sustain a directed verdict on that ground; (3) that the evidence of resistance was not sufficient to sustain a verdict of guilty; (4) that in any event, the sentence of the court is excessive and should be reduced under the provisions of section 29-2308, R.S.1943.

The complaining witness is a married woman and a registered nurse. At the time involved herein, she was living with her husband and infant child in a house at Shelton, Nebraska. The husband was employed in Lexington, Nebraska, and absent from home except on week ends.

Defendant is a married man, 22 years of age, and at the time in question was living with his wife and infant child, and employed in Shelton, Nebraska.

The event upon which this charge is based occurred March 14, 1945. On January 23, 1945, defendant and his family moved into a two-room house on a lot adjoining the residence of the complaining witness. Mrs. Martin and the defendant had not been acquainted prior to that time, although it may be that each knew who the other was. There were some contracts between the new neighbors. Defendant offered evidence of visiting back and forth.

On March 13 1945, defendant came at noon to the Martin home to borrow mustard to fix a mustard plaster for his child who was sick. That evening at supper time Mrs. Martin called at defendant's home and inquired about the health of the baby. Defendant offered testimony that during the evening the doctor and his wife's parents were at his home, and it was decided to take the baby and its mother to her parents for the night. That was done about 10:30. The defendant was home alone. Mrs. Martin denied knowledge of that fact.

Mrs. Martin and her son went to bed and to sleep early in the evening. Her husband was not at home. At 12 o'clock that night the defendant came to the bedroom window of the Martin home, knocked on the window, awakened Mrs. Martin, and asked her to come over to his house, saying the baby was sick. Defendant denied that he referred to the baby. Mrs. Martin put on her robe and went with defendant to his home. When she arrived there, she went in; defendant locked the door. Mrs. Martin found that he was alone. The assault followed. Mrs. Martin returned to her home and 15 minutes later took her baby and went to a friend's house, where she arrived at 12:38. She is described by the witnesses as crying and hysterical at that time. She made complaint to the friend. The trial court refused to permit Mrs. Martin to state what she said. The friend then was sworn and testified that Mrs. Martin said, 'Jack Jump raped me.' Defendant moved for a mistrial. The village marshal came to the home a few minutes later. He was permitted to testify that Mrs. Martin complained to him that Jack Jump had just raped her. Defendant again moved for a mistrial.

The rule is stated in Krug v. State, 116 Neb. 185, 216 N.W. 664, 666: 'In a prosecution for rape, the prosecutrix may testify in chief, if within a reasonable time under all the circumstances after the act was committed she made complaint to another, to the fact and nature of the complaint, but not as to its details; and that other may likewise testify in chief to such fact and nature of the complaint, but not as to its details.'

It is recognized in Dodson v. State, 119 Neb. 340, 228 N.W. 859, that there is an exception in the case of words or statements which are of the res gestae. We do not deem it necessary to consider the admissibility of the evidence on that theory. The state had the right to show that the prosecuting witness complained and the nature of the complaint. This is pointed out in Krug v. State, supra, where it is said that the state should have put before the jury and into the record the nature of what the prosecutrix complained to the witness, i. e., that the defendant had raped her or had intercourse with her at the time in question.

The fact that the name of the defendant was included in...