Miller v. State
| Decision Date | 23 June 1919 |
| Docket Number | 20939 |
| Citation | 173 N.W. 577,103 Neb. 591 |
| Parties | WILLIAM MILLER v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Lancaster county: FREDERICK E SHEPHERD, JUDGE. Affirmed.
AFFIRMED.
R. J Green, for plaintiff in error.
Clarence A. Davis, Attorney General, John B. Barnes and George W Ayres, contra.
Defendant (plaintiff in error), convicted of adultery, appeals.
A variance is urged as follows: The charge was that the defendant, "being an unmarried man," had sexual intercourse with the prosecuting witness, a "married woman." It is urged that the conviction must be set aside because the evidence indicates that at the time defendant was a "married man." It will be observed that the variance urged is quite technical, because, from a moral standpoint, if he were in fact married, the greater the offense. The statute (Rev. St. 1913, sec. 8767), in defining adultery, in one clause instances the case of the "unmarried man" sustaining the relation with a "married woman," but in another clause instances the case of the "married man" sustaining the relation with "another woman," and either of these instances, as well as others described, constitutes the offense known as adultery. While it is true that the accused ought not to be convicted if innocent, and, as a matter of procedure, ought not to be convicted of one offense, when charged with another, it is difficult to see how he can claim prejudicial error in not being permitted to escape conviction by proving a fact which, if true, does not acquit him of the offense, but which still leaves him guilty of the same offense, committed under circumstances more aggravated than those charged. We are of opinion that, if there was error in this particular, it is harmless error.
It is urged that the status of the prosecuting witness as a married woman was not proved. We do not think we could so find without invading the province of the jury. The evidence does not show that the defendant at the time believed that she was a widow.
The accused is a colored man. The woman is white. Consistent with the time during which the illicit relation was sustained, a child was born. This infant in arms was offered as corroborative evidence to show the accused to be its father. This is assigned as error. We have held that this is not ordinarily permissible in bastardy case...
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