Lovings v. State, 33442

• Decision Date: 05 February 1954
• Docket Number: No. 33442,33442
• Citation: 62 N.W.2d 672,158 Neb. 134
• Parties: LOVINGS v. STATE.
• Court: Nebraska Supreme Court

Page 672

62 N.W.2d 672

158 Neb. 134

LOVINGS v. STATE.

No. 33442.

Supreme Court of Nebraska.

Feb. 5, 1954.

Ralph R. Bremers, Omaha, for plaintiff in error.

Clarence S. Beck, Atty. Gen., Ralph A. Nelson, Asst. Atty. Gen., for defendant in error.

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

CHAPPELL, Justice.

Plaintiff in error, Edward Randal Lovings, 48 years of age, hereinafter called defendant, was charged in an information with statutory rape upon a female child 5 years of age. The offense allegedly occurred February 19, 1952. Defendant pleaded not guilty, but upon trial to a jury he was found guilty. His motion for new trial was overruled and he was sentenced to serve 3 years in the penitentiary. Therefrom he prosecuted error to this court, assigning and arguing substantially that: (1) The evidence was insufficient to sustain the verdict; (2) the trial court erred in refusing to give his requested instruction No. 12, and in giving instructions Nos. 7, 10, 12, 13, and 16 on its own motion; and (3) the trial court erred in the admission of certain evidence. We conclude that the assignments should not be sustained. In that regard, there were other errors assigned, but they were either specifically noted as abandoned or were not argued in defendant's brief. They will not be discussed.

This court recently, in Sherrick v. State, 157 Neb. 623, 61 N.W.2d 358, 362, reaffirmed that: 'Under the laws of this state, an accused charged with rape cannot be convicted solely on the uncorroborated testimony of prosecutrix, but if she is corroborated as to material facts and circumstances which tend to support her testimony and from which, together with her testimony as to the particular act an inference of guilt may be drawn, the corroboration is sufficient.

'It is only where there is a total failure of competent proof in a criminal case to support a material allegation in the information, or where the testimony adduced is of so weak or doubtful a character that a conviction based thereon could not be sustained, that the trial court will be justified in directing a verdict of not guilty.'

In Cook v. State, 85 Neb. 57, 122 N.W. 706, this court also concluded that the slightest penetration of the sexual organ of the female is sufficient, if established beyond a reasonable doubt, to constitute the necessary element of penetration in a prosecution for rape, and such element may be proved by either direct or circumstantial evidence. See, also, 75 C.J.S., Rape, § 10, p. 472, § 50, p. 522, § 71, p. 547; 44 Am.Jur., Rape, § 3, p. 902.

In Gallegos v. State, 152 Neb. 831, 43 N.W.2d 1, 2, affirmed in 342 U.S. 55, 72 S.Ct. 141, 96 L.Ed. 86, this court held: 'In laying a foundation in a criminal case for the admission of a confession in evidence, it is sufficient to establish affirmatively all that occurred immediately prior to and at the time of making the confession, provided such affirmative proof shows it to have been freely and voluntarily made and excludes the hypothesis of improper inducements or threats.'

In the light of such rules we have examined the record which discloses that the State adduced competent evidence in chief substantially as follows: That defendant was 48 years old, and the child involved was 5 years old and a kindergarten student at time of the alleged offense. She was 6 years old and in first grade at time of trial. As a witness for the State she testified simply, intelligently, and without equivocation as to the particular act. It occurred with defendant, at his instigation, in his own locked bedroom at his home in Omaha, a few doors from where the child lived with her mother. The mother was a witness for the State. After the alleged offense, the child went directly home, with two pennies and a nickel which defendant had given her not to tell, and in tears complained to her mother. Upon examination by her mother it was discovered that the child's panties were all sticky wet with what looked like a discharge and her private parts, together with surrounding were red and swollen. The police were called, whereupon the child and her mother were taken to a hospital. There the child complained to and was examined by a physician. He testified that there was a colorless stained area in her panties, 8 by 12 centimeters in size, having an odor not unlike that of semen; her labia majora was swollen and contused; her hymenal ring and hymen were markedly reddened, with a 5 to 10 millimeter perforation at the center; and her entroitus was markedly contused and bruised. In his opinion there had been a penetration of her labia majora and entroitus and tissue surrounding but not within the vagina itself. By laboratory and miscroscopic examinations of saline washings taken from the child's panties, the physician identified non-motile spermatozoa, which could only have been deposited there by a ejaculation of the male organ.

On the evening of the alleged offense, defendant was taken to the Central Police Station. There the next morning he made a statement in the presence of a deputy county attorney, who informed defendant that he was such officer, and an official court reporter, who first took such statement in shorthand and then transcribed it in the presence of defendant. Defendant read and signed each typed page thereof as they were completed, and at the end certified that it was all true, 'So help me God.' Before such statement was taken, defendant was advised by the deputy county attorney that he was not required to make a statement or answer any questions that might tend to incriminate him; that anything he said might be subsequently used against him; and that he was entitled to have a lawyer present to represent him if he desired. There was also competent evidence that no promises were made to and no threats or force were made against defendant, whereupon he voluntarily made the statement. It was thereafter offered and properly received in evidence. The contents thereof confessed at length and in detail every element of the crime charged and corroborated the testimony of prosecutrix in every material respect. We conclude that the evidence aforesaid was amply sufficient to sustain the verdict.

Defendant, as a witness in his own behalf, testified that he went with police to the station on the evening of February 19, 1952. He denied that he was guilty of the crime charged, but testified that a captain of police, a large man then on duty, threateningly rose up in his chair and began to question defendant, whereupon he began to break under the strain of mental confusion and fear of what might happen to him, so he orally made up a false story, the substance of which was to admit that he 'had done these things that were charged.' Admittedly, the captain did not lay his hands on defendant physically or tell him that anything would happen if he did not confess, and no policeman 'worked him over' or coerced or threatened him verbally, but they had opportunity to do so and he was expecting it because of what he had read or seen and heard over television. He denied that the written statement given by him the next morning had been voluntarily made but said it was done because he was confused and afraid of the police as aforesaid, and because he relied upon certain promises that had been made by the deputy county attorney. It is also interesting to note defendant testified that he made the statement under duress, but admitted that such duress was 'fear of Almighty God.' Other witnesses testified in defendant's behalf in an effort to cast doubt upon his guilt, but their evidence was in no manner conclusive of innocence as argued by defendant, and to recite it here would serve no useful purpose.

In rebuttal, to impeach defendant's statements or inferences that force, threats, and promises had been made which induced his confessions, the State called as witnesses the night and day police captains, and the former deputy county attorney who was not then in office. They testified in substance that no threats or force or promises of any kind were made to or against defendant in order to induce his admissions of guilt, and that defendant had been advised of every constitutional right as aforesaid before he made the written statement.

Relying upon Jones v. State, 97 Neb. 151, 149 N.W....