Nickolizack v. State

• Citation: 75 Neb. 27,105 N.W. 895
• Parties: NICKOLIZACK v. STATE.
• Decision Date: 22 November 1905
• Court: Supreme Court of Nebraska

75 Neb. 27

105 N.W. 895

NICKOLIZACK

v.STATE.

Supreme Court of Nebraska.

Nov. 22, 1905.

Syllabus by the Court.

Where a defendant in a criminal case offers himself as a witness on his own behalf, he is subject to the same rules of cross–examination as other witnesses, and it is the duty of the court to keep the cross–examination within the law.

A witness cannot be cross–examined as to any fact which is collateral and irrelevant to the issues, for the purpose of contradicting him by other evidence if he should deny it, thereby discrediting his testimony.

Where the prosecuting attorney, on the cross–examination of the accused in a criminal case, asks him if he has not been guilty of a similar offense upon another person at another time, he is concluded by the answer, and cannot call another witness to impeach the accused.

On a trial of one charged with the crime of rape, evidence of an attempt of the accused to commit a similar crime on another person is inadmissible.

Where the accused in such a case was a witness in his own behalf, and the prosecuting officer, on cross–examination, asked him in substance if he had not at a previous time been guilty of a like offense upon another young girl, naming her, and other like questions, and thereafter called the person named to the witness stand and examined her for the purpose of not only impeaching the accused, but of proving him guilty of such independent offense, held, that such conduct was improper and prejudicial, for which the accused should be granted a new trial.

Error to District Court, Holt County; Harrington, Judge.

Joseph Nickolizack was convicted of crime, and brings error. Reversed.

R. R. Dickson, for plaintiff in error.

Norris Brown and W. T. Thompson, for the State.

BARNES, J.

Joseph Nickolizack, who will hereafter be called the accused, was tried in the district court of Holt county on a charge of what is commonly called statutory rape, alleged to have been committed on the person of one Lena Kmich, a female child under the age of 15 years. He was found guilty and was sentenced to the penitentiary for a term of six years. From that judgment he brings the case here by a petition in error.

The record discloses that there are 39 assignments of error in the motion for a new trial, and 100 of such assignments in his petition. However, we will discuss only so many of them as may be necessary to a proper disposition of the case. Counsel for the accused insists that the verdict is not sustained by the evidence; but, as we are constrained to dispose of the case upon another ground, we decline to discuss that question.

The accused further contends that the prosecuting attorney was guilty of misconduct during the trial, which was prejudicial to his rights and was reversible error in this: That the prosecutor was permitted to and did ask the accused, while testifying as a witness in his own behalf, if he had not, at a time previous to the transaction complained of, assaulted one Eunice Butterfield, and attempted to commit rape upon her; and, on being answered in the negative, produced the person so named as a witness for the purpose of not only impeaching him, but to further show that he had been guilty of an independent offence like the one for which he was being tried; that the prosecuting attorney was permitted to, and did, inquire of other witnesses if they had not heard that the accused on one occasion had taken his wife down upon the floor, in the presence of his mother–in–law and their children, and had forcible sexual intercourse with her. It appears that, while the accused was on the witness stand giving testimony in his own behalf, and after he had positively and emphatically denied the commission of the crime charged against him, he was cross–examined by the county attorney, who was permitted to and did ask him the following questions: “Q. Do you wish to be understood that you never committed a crime before? A. How is that? Q. That you never committed a crime before. Is that the understanding? A. How do you mean? Q. That you never committed any offense before? A. Well, I never did. Q. Do you know this little Butterfield girl? A. Yes, sir. Q. Do you know what her name is? A. Eunice, I guess * * * Q. Do you remember an occasion when she come down to get you to go up to her father's on some business of some kind––about two years ago? A. I don't remember. Q. You don't remember that? Do you remember an occasion when you grabbed hold of her and pulled her over on your lap and tried to get your hands up under her clothes? A. No, sir. Q. You say you did not do that? A. No, sir; not that I remember of. Q. You would remember a thing like that, wouldn't you? A. I guess I would if I done it * * * Q. Will you answer you did not do that? A. Yes, sir.” That the cross–examination complained of was incompetent and highly improper there can be no doubt. The rule is too well established to admit of question that, where a witness is cross–examined on a matter collateral to the issues, he cannot, as to his answer, be contradicted by the party putting the question. When a party, on cross–examination, asks a witness an immaterial question, he is concluded by the answer, and will not be permitted to call a witness to contradict it. McDuffie v. Bently, 27 Neb. 380, 43 N. W. 123;Carpenter v. Lingenfelter, 42 Neb. 728, 60 N. W. 1022, 32 L. R. A. 422;Farmers' L. & T. Co. v. Montgomery, 30 Neb. 33, 46 N. W. 214;Johnston v. Spencer, 51 Neb. 202, 70 N. W. 982. A witness cannot be cross–examined as to any fact which is collateral and irrelevant to the issues, for the purpose of contradicting him by other evidence if he should deny it, thereby discrediting his testimony. Carter v. State, 36...