Leahy v. State

• Decision Date: 17 March 1891
• Citation: 48 N.W. 390,31 Neb. 566
• Parties: LEAHY v. STATE.
• Court: Nebraska Supreme Court

31 Neb. 566

48 N.W. 390

LEAHY

v.STATE.

Supreme Court of Nebraska.

March 17, 1891.

Syllabus by the Court.

1. In an information against one L. for the crime of rape, held, that the testimony sustained the charge, and that there is no material error in the instructions.

2. On the trial of one L. on the charge of rape, the assistant prosecuting attorney, on cross-examination, asked the accused “if on the day succeeding that on which it was alleged he committed the crime he did not go to the residence of one B., and there finding Miss B., the daughter of B., alone, did not attempt to drag her to a lounge,” etc., and then stated to the court, in the presence of the jury, “We intend to follow this matter up, and show that he went right over to B.'s, and there tried to kiss and hug Miss B., and drag her to the lounge;” Miss B. having been summoned as a witness by the state, and being then present in court. The explanation on behalf of the state is that in his opinion he (the prosecuting attorney) had a right to follow the defendant up from the time of the alleged crime to the time of his arrest, and show what he did, etc. Held that, take either statement as true, and the conduct of the prosecuting officer was unwarranted and prejudicial to the accused.

3. The answer, on cross-examination, of a party on trial for a crime, as to any matter not material to the issue, is conclusive on the party making the inquiry, as the court will not try a collateral question relating to another offense than the one then being tried; hence the statement of the prosecuting officer to the court, in the presence of the jury, that they intended or in their opinion had the right to prove a criminal assault, not connected with the first, is erroneous.

Error to district court, Fillmore county; MORRIS, Judge.Maule & Sloan, for plaintiff in error.

Wm. Leese, Atty. Gen., and W. C. Sloan, for the State.

MAXWELL, J.

The plaintiff in error was convicted of rape committed upon one Lizzie Schultz, who at that time was in the employment of Mr. and Mrs. Loomis, who resided about a mile and a half east of Fairmont. The prosecutrix was called as a witness, and testified in regard to the plaintiff as follows: “Question. Where did you see him, [Leahy?] Answer. At Mr. Loomis', in the yard. Q. At what time in the day? A. About two o'clock. Q. Where did you first see him that day? A. In the buggy in the yard. Q. Did he go there in a buggy? A. Yes, sir. Q. Now, what took place when he first came there? A. He asked if Mr. Loomis was at home. Q. You say that he asked if Mr. Loomis was at home? A. Yes, sir. Q. You may state now what took place there, in your own way, at that time. A. I told him that Mr. Loomis was not at home; that he went to Exeter to take Mrs. Loomis to the train; and he said he had some business that he wanted to see Mr. Loomis about, and he said he guessed he would stay and wait awhile, and see if Mr. Loomis wouldn't come home; that he would like to see him awful bad. I asked him to come in and have a chair, and he came in. I was combing my hair when he came in, and he asked me to put the hair-pin in for me, and I told him I could do that myself. Then I asked him to sit down, and I pulled out a chair for him to sit down, and he sat on the lounge, and I went in the kitchen, and was going to commence to iron, and he sat there on the lounge awhile talking, and asking me questions, and I answered them as I could; and pretty soon he came in the kitchen, and went and looked out of the window, and he sat down there a while; and then he came up, and he was going to kiss me, and I slapped him, and pushed him away, and he came up to me and grabbed me, and carried me in the other room, and laid me on the lounge there, and...