Noonan v. State
| Decision Date | 19 October 1928 |
| Docket Number | 26328 |
| Citation | 221 N.W. 434,117 Neb. 520 |
| Parties | WILLIAM NOONAN v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Cuming county: ANSON A. WELCH JUDGE. Affirmed.
AFFIRMED.
O'Sullivan & Southard and Hunker & Gross, for plaintiff in error.
O. S Spillman, Attorney General, Harry Silverman and Robert R Moodie, contra.
Heard before GOSS, C. J., ROSE, DEAN, GOOD, THOMPSON and EBERLY, JJ., and REDICK, District Judge.
William Noonan, hereafter called the defendant, was convicted in the district court for Cuming county, Nebraska, of a felonious assault upon Gladys Ford with intent to commit rape, made on September 19, 1927. He was sentenced to be imprisoned in the penitentiary of this state at hard labor for five years. To reverse this conviction and sentence he appeals to this court.
Numerous assignments of error are made in the briefs, which may be summarized as relating to (1) the sufficiency of the evidence to sustain the conviction; (2) refusal of the district court to quash the second jury panel selected and summoned under the provisions of section 9078, Comp. St. 1922, on the ground that the sheriff who selected and summoned the same was disqualified on account of interest; (3) error of the court in overruling certain challenges to the competency of certain jurors; (4) error of the court in restricting cross-examination, especially with reference to certain photographs presented by the defense as part of the cross-examination of the prosecutrix.
The first question for consideration is the claimed insufficiency of the evidence connecting the defendant with the crime. It is contended that the evidence lacks the necessary corroboration of the prosecutrix required in prosecutions of rape and kindred offenses, and it is challenged because of its inherent weakness.
There can be no question that the corpus delicti, the actual commission by some one of the particular crime charged, is established in this case by ample evidence. Indeed, this is not questioned by defendant. His counsel, in their briefs, state: Argument in behalf of the defendant then proceeds on the basis that the positive identification by the prosecutrix of the defendant as the assailant on the witness-stand at the trial must, as a matter of law, be corroborated by evidence other than her own before his own positive testimony in his own behalf to the contrary is overcome; in other words, that the prosecutrix in cases of assault with intent to commit rape must be corroborated in the same manner and to the same degree as to the identity of the accused as is required to establish the corpus delicti.
The district judge, at the trial of the case, gave the usual instructions as to the necessity of the corroboration of the prosecutrix. The following excerpt from instruction No. 9 given by the district court indicates their general tenor:
It is to be remembered that Nebraska has no statute providing that a defendant cannot be convicted of rape or of an assault with intent to commit rape unless the prosecutrix be corroborated by evidence other than her own tending to connect the defendant with the commission of the offense. The present rule on that subject is the result of judicial decision and not of legislative enactment.
In Garrison v. People, 6 Neb. 274, we held that it was not error for the court to refuse to instruct the jury that they could not convict the defendant upon the unsupported testimony of the prosecutrix.
In Mathews v. State, 19 Neb. 330, 27 N.W. 234, the attention of the profession was drawn to the fact that in Garrison v. People, supra, a bill of exceptions of the evidence had not been preserved, and that it was not intended in that case to hold that a conviction of rape would be sustained upon the testimony of the prosecutrix, if her sworn statements were disputed by other testimony, and "there were no marks upon her person or clothing showing a recent struggle, or no complaint as soon after the occurrence as an opportunity offered." The rule thus announced has been the basis of our procedure in prosecutions of rape and kindred offenses since the date of the opinion last referred to, and has been consistently adhered to in a line of well-considered cases. It must be admitted, however, that this rule is not in accord with the rule at common law, that in most jurisdictions it is not necessary, as a matter of law, to corroborate the testimony of the prosecutrix. In other words, the general rule, in the absence of statute, appears to be that the uncorroborated testimony of the prosecutrix is sufficient to carry the case to the jury, and it has been held that the rule is the same in cases of assault with intent to commit rape. It should be said, however, that this rule of corroboration, even as thus restricted, does not bear the unanimous approval of the members of this court as now constituted. See dissenting opinion by Rose, J., in Swogger v. State, 116 Neb. 563, 569, 218 N.W. 416.
We are now asked, in effect, to extend the principle announced first in Mathews v. State, supra, to the extent of requiring corroboration, as a matter of law, of the prosecutrix' evidence as to the identity of her assailant. Three cases are cited to sustain the contention of the defendant, Dunn v. State, 58 Neb. 807, 79 N.W. 719; Mott v. State, 83 Neb. 226, 119 N.W. 461; Boling v. State, 91 Neb. 599, 136 N.W. 1078. But in none of these cases was the exact question presented upon which the present case must be determined. The gists of these decisions are simply a restatement of the general rule first announced in Mathews v. State, supra, and the expressions used by the court in the various opinions are not applied to the specific question of proof of identity of the accused.
The precise question, however, before us was discussed by this court in Henderson v. State, 85 Neb. 444, 123 N.W. 459, and in which Mott v. State, supra, cited by defendant, is distinguished. It was there insisted by the defendant charged with rape that, as a matter of law, he could not be convicted "unless the prosecutrix be corroborated by other evidence tending to connect the defendant with the commission of the offense." Iowa cases were cited in support of this proposition. Root, J., in delivering the opinion of the court, disposed of this contention in the following language:
In Younger v. State, 80 Neb. 201, 114 N.W. 170, Letton, J., in delivering the opinion of the court, in substance indicates that evidence corroborating the testimony of the prosecutrix as to the identity of the accused charged with rape by force and violence, and where the assault was evident, as a matter of law, is wholly unnecessary. At least, no greater evidence should be required than in a "violent assault of another nature." The reasoning upon which the two decisions last referred to are based is convincing.
A woman becomes a victim of an assault made with intent to commit murder, to rob, or to commit great bodily harm. In these cases the law accords to her evidence the same weight, the same force and effect, in the prosecution of the offense as it accords the men, under like circumstances and conditions. It does not require in such cases corroboration which the Nebraska rule exacts in cases where rape is involved.
The theory of the Nebraska rule is, that the nature of rape is such that evidence to establish the same may be easily fabricated and hard to disprove, and, therefore, a technical corroboration, as a matter of law, is required. Where, however, the offense charged has been fully, completely and admittedly established beyond a reasonable doubt, the dangers which the Nebraska rule seeks to avoid are past, no occasion for fabrication then arises, and no reason, therefore, exists for the extension of the principle involved.
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