Maxfield v. State

• Citation: 54 Neb. 44,74 N.W. 401
• Parties: MAXFIELD v. STATE.
• Decision Date: 03 March 1898
• Court: Supreme Court of Nebraska

54 Neb. 44

74 N.W. 401

MAXFIELD

v.STATE.

Supreme Court of Nebraska.

March 3, 1898.

Syllabus by the Court.

1. An instruction in a criminal prosecution is not erroneous which defines a reasonable doubt as being such a doubt as arises from a candid and impartial consideration of all the evidence in the case, and which would cause a reasonable and prudent man to pause and hesitate in the graver transactions of life, and that a juror is satisfied beyond a reasonable doubt if, from a consideration of the entire evidence, he has an abiding conviction of the truth of the charge.

2. Mere nondirection by the trial judge affords no ground for the reversal of a criminal cause, unless a proper instruction has been tendered and refused.

3. To justify a conviction of rape, the proof must reach such a degree of certainty as to exclude a reasonable doubt.

4. A conviction of rape will not be sustained where the testimony of the prosecutrix as to the principal fact relied upon to sustain the charge is not only uncorroborated, but is so contradictory as to be self-destructive.

Error to district court, Hamilton county; Sedgwick, Judge.

Frank Maxfield was convicted of rape, and he brings error. Reversed.Hainer & Smith, for plaintiff in error.

C. J. Smyth, Atty. Gen., and Ed. P. Smith, Dep. Atty. Gen., for the State.

NORVAL, J.

Frank Maxfield was tried and convicted of the crime of rape, alleged to have been committed upon the person of a girl between 16 and 17 years old. His motion for a new trial was denied, and to reverse the judgment and sentence pronounced against him is the object of this proceeding.

Complaint is made of the sixth instruction, which reads as follows: “(6) You are instructed that a doubt, to justify an acquittal, must be reasonable, and it must arise from a candid and impartial investigation of all the evidence in the case; and unless it is such that, were the same kind of doubt interposed in the graver transactions of life it would cause a reasonable and prudent man to hesitate and pause, it is not sufficeint to authorize a verdict of not guilty. If, upon consideration of all the evidence, you can say you have an abiding conviction of the truth of the charge, amounting to a moral certainty, you are satisfied beyond a reasonable doubt.” It is argued that the foregoing did not correctly define a reasonable doubt, but required the defendant to establish his innocence before he could claim an acquittal. An instruction in substantially the same language was approved by this court in Polin v. State, 14 Neb. 540, 16 N. W. 898, and Willis v. State, 43 Neb. 102, 61 N. W. 254. On the strength of those decisions, the assignment of error relating to the giving of the instruction quoted is overruled.

The jury, after deliberating upon their verdict for some time, returned into court, when one of their number, in answer to an inquiry made by the presiding judge, stated: “What bothers us most is the competency of the prosecuting witness. What weight we should give conflicting and contradictory evidence,--just that alone.” Thereupon the court instructed the jury that “you yourselves are the sole judges of the weight of the testimony that has been introduced before you, and, in determining what weight to give the testimony of the complaining witness in this case, you should take into consideration her appearance while upon the stand, her apparent interest or lack of interest in the proceeding, if any appear, and her manner of testifying; and, in the light of all her testimony and of the other evidence in the case, you should give to her testimony such weight, and only such weight, as you think, under all the circumstances, it is entitled to. And if, upon consideration of all the evidence in the case and the former instructions of the court, you find that all the material allegations of the complaint have been proved beyond a reasonable doubt, you should find the defendant guilty. If you find that the material allegations of the complaint have not been so proved, then you should find the defendant not guilty.” It is not argued that the foregoing charge contained any erroneous statement of the law, or that it was not applicable to the case as made by the evidence, but the contention is that the instruction was not responsive to the inquiry made by the juror, and for that reason was misleading and prejudicial. This criticism is unavailing. The doctrine has been repeatedly stated that mere nondirection by the trial court is no cause for the reversal of a criminal cause where there has been no refusal of a proper instruction tendered. Hill v. State, 42 Neb. 502, 60 N. W. 916;Housh v. State, 43 Neb. 163, 61 N. W. 571;Pjarrou v. State, 47 Neb. 294, 66 N. W. 422.

Another ground urged for a reversal is that the verdict is unsupported by the evidence. The accused was married, and on the date of the alleged occurrence resided with his family in the village of Bromfield. Sadie Stevenson, the prosecuting witness, resided with her parents in said village. The crime charged is alleged to have been committed at the house of the defendant between the hours of 1 and 3 p. m. on Sunday, January 31, 1897. The prosecutrix alone gave testimony as to the particular acts constituting the offense, the accused not having taken the stand in his own behalf. She testified that on the date and between the hours stated, she went to the residence of the accused, and, finding no person at the house, she started to leave, meeting him at the front gate; that she inquired for his wife, and received as a reply that the latter was out among the neighbors, but would soon return home; and that, upon invitation of the accused, the prosecutrix went into the house with him. What transpired while they were together must be gathered from the testimony of Sadie Stevenson alone, and her statements are conflicting and irreconcilable. On direct examination she stated that, after going into the house, she asked if he had a checkerboard, which question elicited an affirmative answer. That thereupon, at her suggestion, they played a game of checkers, she being the winner. That at the close of the game he threw her upon the floor, unbuttoned her underclothes, and removed them; and, to use her language, “He treated me just like if I was his own woman; he took his parts out, and put them in mine,” causing her to cry out and scream. That in about half an hour, so she states, “he got me down again, and done the same thing over.” That then she put on her coat, and, after accepting from the defendant 50 cents, one-half for winning the game of checkers, and the remainder as hush money, returned to her father's house, thence to a neighbor's, where she stayed until the next morning, when she went to school, returning to her home in the evening. On cross-examination the prosecutrix, after stating that it was in the defendant's house when she first asked as to the time his wife would be home, and that witness had no other conversation whatever with him, testified, in answer to questions, as follows: “Q. Now, the matter of having sexual relations was not discussed between you and him? A. No, sir. Q. Did he put his hands on...