Palin v. State

• Citation: 38 Neb. 862,57 N.W. 743
• Parties: PALIN v. STATE.
• Decision Date: 16 January 1894
• Court: Supreme Court of Nebraska

38 Neb. 862

57 N.W. 743

PALIN

v.STATE.

Supreme Court of Nebraska.

Jan. 16, 1894.

Syllabus by the Court.

1. On a trial of an information for an assault with intent to commit a rape, it is not necessary to prove the commission of the offense on the particular day named in the information, provided the same be within the time limited by statute for the prosecution of the offense.

2. As a general rule it is incompetent for the state, in a criminal prosecution, to prove that the prisoner at some other time committed an offense similar to the one with which he stands charged. This rule has its exceptions; but whether the crime of rape, or an assault with intent to commit that offense, falls within the rule or its exceptions, is not decided.

3. Where a single crime is charged in an information, and the state on the trial, for the purpose of proving the offense alleged, introduces testimony tending to prove similar, but distinct, crimes, the proper practice is for the accused to move the court to require the prosecutor to elect on which transaction he will rely for a conviction.

4. The word “abuse,” in the sense it is used in section 12 of the Criminal Code, is synonymous with “ravish.”

5. In a criminal prosecution the court instructed the jury, in substance, that the law presumed the accused innocent of the crime charged, and that such presumption continued until his guilt should be established by competent evidence beyond a reasonable doubt. Held sufficient to apprise the jury that their verdict must be based upon the evidence in the case alone, and that it was not error to refuse an instruction that “the information in this case is of itself a mere accusation or charge against the defendant, and is not of itself any evidence of the defendant's guilt, and no juror in this case should permit himself to be to any extent influenced against the defendant because or on account of the information in this case; that your personal opinion as to facts not proven cannot properly be considered as the basis of your verdict. You may believe as men that certain facts exist, but as jurors you can only act upon evidence introduced upon the trial, and from that alone you must form your verdict, unaided, unassisted, and uninfluenced by any opinion or presumption not formed upon the testimony.”

6. On the trial of a criminal cause the county attorney made a portion of his closing address to the jury while the trial judge was absent from the court room, and in said address said prosecutor, over the objection of the accused, misquoted the testimony in a material matter, to which counsel for the prisoner at the time objected, but, owing to the said absence of the judge, no ruling was had thereon. Held such error as demanded a reversal.

Error to district court, Lancaster county; Tibbets, Judge.

James P. Palin was convicted of assault with intent to rape, and brings error. Reversed.W. B. Comstock and Reese & Gilkeson, for plaintiff in error.

Geo. H. Hastings, Atty. Gen., for the State.

NORVAL, C. J.

At the September term, 1892, of the district court of Lancaster county, an information was filed by the county attorney, charging the plaintiff in error, on the 11th day of July, 1892, with assaulting one Maud Shaffer, a female child of the age of six years, with the felonious intent to carnally know and abuse her with her consent. Upon the trial the jury returned a verdict of guilty against plaintiff in error, whereupon his counsel filed a motion for a new trial, which was overruled by the court, and an exception taken. Thereupon plaintiff in error was sentenced to confinement in the penitentiary for the term of four years.

The first assignment of error is based upon the ruling of the trial court in the admission of testimony. It appears that the prosecution was permitted to prove by the witness McGrew, over the objection of the defendant, that the accused, on the Friday preceding the 11th day of July, 1892, committed an assault upon the child Maud Shaffer with the intent to ravish her. It is insisted that said testimony tended to prove a similar but a separate and distinct offense from the one with which the accused was charged in the information, and was therefore reversible error. This court, in numerous cases, has held that in criminal prosecutions, except in cases where it is necessary to show guilty knowledge, it is incompetent for the state to prove that the prisoner, at another time and place, committed an offense similar to the one with which he stands charged. Smith v. State, 17 Neb. 358, 22 N. W. 780;Cowan v. State, 22 Neb. 519, 35 N. W. 405;Berghoff v. State, 25 Neb. 213, 41 N. W. 136. Such, undoubtedly, is the general rule, but whether the principle should be applied in a prosecution for rape, or an assault with intent to commit that crime, is not so clear. In the case of Parkinson v. People, (Ill.) 25 N. E. 764, it was ruled that, on a trial for rape, proof of two acts of rape committed by the prisoner on the prosecuting witness on different days is inadmissible. The following authorities hold that the admission of such evidence in prosecutions like the one at bar is not reversible error, but is competent for the purpose of showing the intent with which the assault charged was committed. Sharp v. State, 15 Tex. App. 171;Williams v. State, 8 Humph. 585;Com. v. Lahey, 14 Gray, 91;Com. v. Nichols, 114 Mass. 285;State v. Wallace, 9 N. H. 515;State v. Marvin, 35 N. H. 22;State v. Knapp, 45 N. H. 156;Lawson v. State, 20 Ala. 65;People v. Jenness, 5 Mich. 305. As we view the record, it is not necessary for us to now decide between the conflicting authorities. The testimony of the witness McGrew was objected to on the ground “that they have charged this man with an offense committed on a certain day, and now they are attempting to prove a different crime.” The acts proved by the witness tended to establish the identical crime laid in the information, although they occurred prior to July 11, 1892, which is the day the information alleges that the offense was committed. The allegation in the information as to the time the crime was committed is not material. The state was not required to prove that the transaction occurred on the day alleged, but it was sufficient if proven to have been committed within the time limited by statute for the prosecution of the offense. Yeoman v. State, 21 Neb. 171, 31 N. W. 669. True, the state introduced evidence of two distinct attempts of improper familiarities on the part of the plaintiff in error with the child,––one on the date named in the information, and the other on the Friday preceding. The testimony of the acts committed on July 11th was the last introduced on the trial, and was received without any objection being interposed thereto by the plaintiff in error. Had the acts occurred on July 11th been first proved, possibly the state would have been required to confine its evidence to the transaction occurring on that day; at least, the defendant would then have been in a position to raise the question in this court whether or not the evidence of what took place on Friday was admissible. Where an information charges a single crime, and on the trial the state, for the purpose of proving the act charged, introduces evidence tending to establish similar, but separate and distinct, offenses, the proper practice is for the defendant to move the court to require the prosecutor to elect on which transaction he will claim a verdict. Maxw. Crim. Proc. 517; State v. Crimmins, 31 Kan. 376, 2 Pac. 574;State v. Chicago, M. & St. P. Ry. Co., 77 Iowa, 442, 42 N. W. 365. No motion to elect was made in the case at bar.

It is further contended that the court erred in giving instruction No. 5, which reads as follows: “The information charges the defendant with an assault...