Leedom v. State

• Decision Date: 07 May 1908
• Docket Number: 15,451
• Citation: 116 N.W. 496,81 Neb. 585
• Parties: ARTHUR R. LEEDOM v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

116 N.W. 496

81 Neb. 585

ARTHUR R. LEEDOM v. STATE OF NEBRASKA

No. 15,451

Supreme Court of Nebraska

May 7, 1908

ERROR to the district court for Boone county: JAMES R. HANNA JUDGE. Affirmed.

AFFIRMED.

H. C Vail and A. E. Garten, for plaintiff in error.

W. T Thompson, Attorney General, Grant G. Martin, John C. Wharton and O. M. Needham, contra.

OPINION

BARNES, C. J.

At the October, 1907, term of the district court for Boone county an information was filed against one Arthur R. Leedom, hereafter called the defendant, charging in substance that in said county and in the state of Nebraska, on the 20th day of July, 1906, and upon various times and occasions subsequent to that date, and up to and including the month of November, 1906, the defendant, a male person of the age of 18 years and upwards, did assault and carnally know one Edith F. Mathews, a female child under the age of 18 years, and not previously unchaste. The defendant by demurrer challenged the sufficiency of the information on the grounds of duplicity and a misjoinder of offenses. The demurrer was overruled. Thereupon a plea of not guilty was interposed. A jury was impaneled, the trial proceeded, and, when the state commenced to offer its evidence, counsel for the defendant moved ore tenus that the prosecutor be required to elect upon which of the several offenses charged in the information he would proceed to trial and rely for a conviction. The record discloses that, thereupon, the following proceeding took place: "By the Court: As the court understands the information, the time is fixed the 20th day of July, 1906, and any further dates referred to therein are offered only as corroborative proof of the crime charged as having taken place on the 20th day of July, 1906. With that statement as to the understanding of the court, the motion to elect may be overruled. Exception. By Mr. Vail: There has been no statement made in open court that the state is prosecuting for the statutory crime committed on the 20th day of July, 1906, and the information filed herein alleges a continuing offense from the 20th day of July, 1906, on various occasions subsequently to that date up to and including the month of November, 1906, and the defense at this time insists that it is fair to the defense to know from the lips of the state's attorney or those representing him that the state is only prosecuting on the charge of statutory rape alleged to have been committed on the 20th day of July, 1906. By the Court: The statement made by the court was based upon the argument of the counsel for the state made on this information, but the record may now show exactly what the state is contending for. The counsel for the state may state what their claim is in that regard. By Mr. Needham: The state will elect to stand upon the act of intercourse as occurring on or about the 20th day of July, 1906, in so far as that is the substantive crime is concerned. We will insist that we have a right to prove any acts after that as corroborative evidence. By Mr. Vail: The defendant at this time insists that the state be specifically limited to the 20th day of July, 1906. By the Court: As to these matters of corroborative evidence we will meet them when we come to them. The objections may be overruled. Exception." Thereafter the trial proceeded upon the theory thus outlined, and finally resulted in the following verdict: "We, the jury, duly impaneled and sworn in the above entitled cause, do find the defendant, Arthur R. Leedom, guilty in manner and form as charged in the information." The court, after overruling defendant's motion for a new trial, sentenced him to imprisonment in the penitentiary for a term of six years, and he has brought the case here for review.

The defendant first contends that the information charged him with the commission of several separate, distinct and substantive crimes; that the jury were not advised or informed which one of the several offenses was submitted to them for consideration; that, therefore, some of the jurors might have found him guilty of one of said charges and others of some other offense, all of which was prejudicial to his rights, and he is, therefore, entitled to a new trial. We are constrained to say, however, that we do not so understand the record. That each act of sexual intercourse between the defendant and the prosecutrix was a separate and distinct crime, there can be no doubt; and, while we do not approve of the charging part of the information, yet, under the rule announced in Lanphere v. State, 114 Wis. 193, 89 N.W. 128, the form of the charge furnishes no ground for a reversal of the judgment in this case. It was there said "The failure of the court to strike from the information the useless words, 'and on divers other days and times between the said 4th day of August and the 1st day of September, A. D. 1898,' was not prejudicial to the rights of the accused. The words were mere surplusage. The naming of a day certain was essential, and that was satisfied." The information there was like the one in the case at bar, and the court treated the words, "and on divers other days and times between said 4th day of August and the first day of September, A. D. 1898," as mere surplusage, and not at all prejudicial to the rights of the accused. Again, we think it may be said, strictly speaking, that the information charges but one offense, to wit, that of July 20, 1906. No other date, time or place is alleged, and yet, if we were at all in doubt as to whether or not the defendant was prejudiced by the form of the information, the rulings of the court thereon, or the manner in which the trial was conducted, we would not hesitate to reverse the judgment and grant the defendant a new trial. It appears, however, in addition to what has already been said, that in open court, and in the presence of the jury, the prosecuting attorney elected to, and stated that he would, rely on the charge of July 20, 1906, and none other, for conviction. As above stated the trial proceeded on that theory and with that understanding. The state made its proof of the crime committed on that date, and introduced no evidence as to the date of any other or different offense, and it seems to have been clearly understood by the court and jury that the evidence, such as it was, of other acts of a like nature between the defendant and the prosecutrix, of her pregnancy, and the letters written to her by the defendant acknowledging himself to be the author of her unfortunate condition, were introduced for the sole purpose of corroborating her testimony as to the principal and specific charge contained in the information. It further appears that the court, in one of the instructions, told the jury that, if the prosecutrix had ever had unlawful, voluntary sexual...