Krug v. State

• Court: Nebraska Supreme Court
• Writing for the Court: GOSS, C. J.
• Citation: Krug v. State, 116 Neb. 185, 216 N.W. 664 (Neb. 1927)
• Decision Date: 28 November 1927
• Docket Number: 25825
• Parties: EDWARD KRUG v. STATE OF NEBRASKA

216 N.W. 664

116 Neb. 185

EDWARD KRUG v. STATE OF NEBRASKA

No. 25825

Supreme Court of Nebraska

November 28, 1927

ERROR to the district court for Richardson county: JOHN B. RAPER JUDGE. Reversed.

REVERSED.

F. A Hebenstreit, for plaintiff in error.

O. S Spillman, Attorney General, and Harry Silverman, contra.

Heard before GOSS, C. J., DAY, GOOD, THOMPSON and EBERLY, JJ., and REDICK, District Judge.

OPINION

GOSS, C. J.

Edward Krug prosecutes error from a conviction for statutory rape. The defendant being over 18 years of age and the prosecutrix under that age, the requirements of the statute would be met by proof beyond a reasonable doubt that she was not previously unchaste, and that the parties had sexual intercourse at or about the time alleged in the indictment.

The essential facts to be stated from the record to illustrate the chief error assigned are as follows: One evening about 7:45 early in January, 1926, Dorothy Crews and Hazel Davis were walking along the street in the village of Shubert, when the defendant in a small roadster drew up at the curb and invited them to ride. Hazel Davis did not accept, but the prosecutrix did. The defendant had recently come to town and worked in his grandfather's meat market. The grandfather had introduced him to Dorothy in the store a few days before this occurrence. Dorothy testified that the defendant drove out of town about half a mile, stopped his car, and after some objection on her part had sexual intercourse with her. They then returned to town after an absence of about 25 minutes and she found Hazel Davis and spent some time with her and others, as detailed in the evidence. The state claims a complaint was made by the prosecutrix to Hazel Davis soon after she returned from the ride, telling her friend that the defendant had intercourse with Dorothy since they last separated. This is all the record shows of the examination of Dorothy by the state on this point (omitting objections and rulings):

"Q. Now, did you tell anybody of this occurrence between yourself and the defendant that night, did you tell the Davis girl? A. Yes, sir; I did." The following is all the record shows of the cross-examination of prosecutrix on this point (omitting inapplicable matter): "Q. You say you told Miss Davis about this when you were going to the depot? A. Before I went to the depot. Q. What time was it you told her that? A. Well, it must have been about eight twenty. Q. Now, then, you say you went up in the barber shop didn't you after this happened? A. Yes, sir. Q. And who was in the barber shop? A. Her mother and Billy McArdle and herself was all. Q. Billy McArdle is Hazel Davis' step-father? A. Yes, sir. Q. And you stood there talking a while? A. Not very long. I told her I was thirsty; then we went into the kitchen and I got a drink and then I told her." The following is the entire record of the testimony of Hazel Davis when examined by the state as to the complaint of the prosecutrix (omitting objections and rulings): "Q. Now, did you have a conversation with Dorothy? A. Yes, sir. Q. Did she tell you what took place between her and Eddie Krug? A. Yes, sir." The prosecutrix testified that she never told any of her family of the outrage until the last of May, after she discovered she was pregnant; and that she never told Eddie Krug about her pregnancy. Her child was born October 6, 1926.

The defendant denied any act of intercourse with the prosecutrix, and testified that, on the occasion in question, they drove around in the town about 15 minutes and never left the corporate limits. There was testimony by others as to his good character. No witness testified to anything unusual in the appearance or clothing of the prosecutrix, and witnesses who saw her just after the return from the ride with defendant testified that there was nothing out of the ordinary in her appearance, that she seemed to be in good humor, that neither her hair nor clothing were ruffled, and that she looked as if she had just come from home.

In this state of the record the court gave instruction No. 12, which reads as follows: "If you find that Dorothy Crews made complaint to Hazel Davis of the alleged intercourse with defendant soon after the time she testifies the act of intercourse took place with defendant, such may be received and considered by the jury in corroboration of her other testimony given in the case."

It is argued that this instruction assumes a condition not in evidence; that is to say, that it assumes that Hazel Davis testified that the prosecutrix, in complaining to her, told her that the defendant had intercourse with the prosecutrix.

Under our decisions the testimony of the prosecutrix in a rape case to the effect that she was not previously unchaste need not be corroborated. Leedom v. State, 81 Neb. 585, 116 N.W. 496; Miller v. State, 112 Neb. 243, 199 N.W 539. Nor is it necessary that she be corroborated by other witnesses as to the particular act constituting the offense; but, if the defendant testifies and explicitly denies the commission of the offense, the prosecutrix must then be so corroborated, as to material facts and circumstances tending to support her testimony as to the principal fact, that from all such testimony the guilt of the defendant is established beyond a reasonable doubt. Fager v. State, 22 Neb. 332, 35 N.W. 195; Miller v. State, 112 Neb. 243, 199 N.W. 539. We have further held that her positive and unequivocal testimony as to the main fact constituting the offense will be sufficiently corroborated, if opportunity and disposition on the part of the defendant to commit the offense are shown and if the circumstances proved by other witnesses tend to corroborate...