Krum v. State

• Decision Date: 27 May 1886
• Parties: KRUM v. STATE.
• Court: Nebraska Supreme Court

19 Neb. 728

28 N.W. 278

KRUM

v.STATE.

Supreme Court of Nebraska.

May 27, 1886.

Error from Stanton county.

H. C. Brome, for plaintiff.

The Attorney General, ( W. F. Bryant with him,) for defendant.

MAXWELL, C. J.

The plaintiff was tried at the September (1884) term of the district court of Stanton county, and found guilty of an assault with intent to commit a rape, and sentenced to imprisonment in the penitentiary. He now prosecutes error to this court. The testimony tends to show the following facts: That on the seventh of December, 1881, the plaintiff went to the residence of Frank Severni, in the town of Stanton, between 5 and 6 o'clock in the evening of that day, and rapped at the door, which was opened by Mrs. Saverni, the wife of Frank Severni. She testifies that she “let him in, and gave him a chair for him to sit down;” that “he begun to talk to me something about money, which I didn't understand.” Then follows a statement that she was holding a child about one year old; that, as she went to lay the child in the cradle, the plaintiff threw her on the bed. Then follows a statement of her struggles, etc., which, as there must be a new trial for reasons hereafter stated, will be omitted. The testimony tends to show that the house in which the prosecutrix resided was a double one, and occupied at the time by two families; that she had been acquainted with the plaintiff about three years and a half; that the plaintiff was somewhat intoxicated at the time. The prosecuting witness was unable to understand the English language, and hence her testimony was taken through an interpreter. In addition to this, the questions, even on the part of the state, were to a great extent leading and suggestive of the answer desired; and for this, as well as the vagueness of the testimony, very much is left to conjecture. The state then offered to prove from the records of the court that “an indictment for this same offense was procured against this defendant, and on a plea in abatement was quashed by the court on the twenty-sixth day of September, 1882,” and “that a second indictment was found on the following day, to-wit, the twenty-seventh day of September, 1882, and that on the same day a capias was issued for the arrest of the defendant on said indictment; and counsel for the state further offer to prove, by the clerk of this court, that such capias, together with the return, has been lost; and counsel for the state further offers to prove, by the sheriff of the county, that between the date of the quashing of the first indictment named, and the time of finding the second indictment, the defendant herein, Thatcher M. Krum, who had before that time been under arrest pending a trial on the first indictment, escaped from Stanton county, and remained away from said county until he was arrested under the capias issued at the last term of this court; and that the sheriff, between the time of such escape and the last term of this court, made diligent search and inquiry, but was unable to find said defendant in Stanton county. The state offers to prove said facts as circumstances showing the guilt of the accused.”

This, on the objection of the defendant, was excluded, and while no particular point is made on this offer by the plaintiff in error, although the objection is urged in the brief, we desire to say that such an offer, made in the presence of the jury, for the purpose named, could not fail to be prejudicial. There is no testimony whatever that Krum was a resident of Stanton county, or that he went to any other place than his own home. When he left Stanton county, he was not under arrest, nor, so far as it appears, under any obligation to remain in Stanton county. How, then, could he escape? To constitute an escape there must be an actual...