Parmalee v. State

• Decision Date: 01 April 1916
• Docket Number: 18986
• Parties: ROBERT PARMALEE v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

157 N.W. 1010

99 Neb. 598

ROBERT PARMALEE v. STATE OF NEBRASKA

No. 18986

Supreme Court of Nebraska

April 1, 1916

ERROR to the district court for Lincoln county: HANSON M. GRIMES JUDGE. Affirmed.

AFFIRMED.

Reese Reese & Stout and E. H. Evans, for plaintiff in error.

Willis E. Reed, Attorney General, and Charles S. Roe, contra.

MORRISSEY C. J. HAMER, J., concurring. SEDGWICK, J., dissents.

OPINION

MORRISSEY, C. J.

This is an error proceeding from the district court for Lincoln county, where defendant, Robert Parmalee, was convicted of the crime of rape on the person of Minnie Thiede, a female child under the age of 18 years, and over the age of 15 years, with her consent. The crime is alleged to have been committed April 10, 1914. A number of assignments of error are set out in the brief, but the principal complaint is that the evidence is insufficient to sustain the verdict.

The defendant was 26 years of age at the time of the acts complained of, and had been employed as foreman or manager of a ranch. Prosecutrix had been living at this ranch, assisting with the housework and attending school. About the 1st of April, defendant left the Hansen ranch and went to another farm, or ranch, located a mile therefrom, where it would appear he was to engage in business for himself. April 10 defendant and prosecutrix were present at a party at a nearby farm. They were among the last to leave. According to defendant's theory, he did not regard himself as her escort and did not get her horse for her; but, when he had saddled his horse and made ready to leave the premises, he found her already mounted and ready to join him. He admits they rode together for some distance, until they reached a turn in the road which would take him to his home, but says that he there left her to proceed to the Hansen ranch alone.

She testifies that he accompanied her to the Hansen ranch; that on the way he suggested that they have sexual intercourse, and she refused; that on arriving at the ranch they went into the barn; he turned his horse loose, and she proceeded to unsaddle her horse; that he took hold of her and coaxed her to have sexual intercourse with him, and that she finally consented and the first act of intercourse between them took place; that he returned to the Hansen ranch from time to time thereafter until the 20th of the month, and that during this time she had intercourse with him once in the barn and three times in the house. She remained at the Hansen ranch until the 28th of April, when, after arriving at the schoolhouse, she became sick with an attack of vomiting. That she went from the schoolhouse to a neighbor's, and from there she was taken to a hospital in North Platte by her mother and sister; that the doctor made an examination of her and found her pregnant. The child was not born at the time of the trial, but her pregnancy seems to be admitted. She testifies that he was the only man with whom she had ever had intercourse.

It is not clear whether the Hansens were at home at the time of the alleged intercourse on April 10, or whether they had not yet returned from North Platte, where they had spent the evening. On the other occasions of which she testifies, she says that he came to the place evenings, after she had returned from school, and when Mr. and Mrs. Hansen were away from home. The testimony shows that the Hansens kept an automobile, and were away from home a good deal during that period. Mr. Hansen was called as a witness for the defendant, and testified that he did not see defendant at the ranch on any of the occasions mentioned by the prosecutrix, but his testimony is of a merely negative character and does not show that her testimony in that regard is untrue.

In May following she called on defendant where he was cultivating corn and charged him with being responsible for her condition. Their version of the conversation differs somewhat. She says that he said: "He would never marry me. He said that if he had to marry me he would treat me like a rattlesnake. He said a man could treat a woman in such a miserable life that she will take her own life, and he said he did not want me to say anything to mamma about this business; and he said for me to come in and he was going to send me to Broken Bow, Nebraska, and have this child knocked, and he told me to be in at 9 o'clock in the evening on the south side of the bandstand in the courtyard."

He admits that she called on him and told him she was in trouble, and says that he asked her why she called on him, and she replied that she thought he might help her, and that he asked, "'Why don't you go to Charlie Russell.' I says, 'Wasn't he caught in the room with you?' And she says, 'Well, yes; but he never did anything.' I says, 'Well, why don't you marry him?' She says, 'I don't want to.'" That she then asked him if he would help her, and he replied, "Well, I will consider this proposition over. * * * I told her then a certain length of time to meet me down here by the courthouse and I would tell her what I had considered. I wanted to counsel somebody whether it was right for me to help her or not. And that was the end of our conversation."

Subsequent to this a bastardy proceeding was instituted, and the prosecutrix, her mother and sister went to the county attorney's office, and the county attorney and defendant met, and the county attorney sent defendant to his office, with the suggestion that a settlement be effected. The three women testify that in that conversation defendant admitted that he was responsible for her condition, and offered to pay $ 200 in settlement if they would keep the matter out of court; that no settlement was made, and a few days thereafter defendant approached them on the streets of North Platte and again made an offer of settlement; that the girl's mother demanded that a marriage ceremony be performed; that defendant declined; that he held up his hands and said, "Fight it. * * * Pen for me." He admits making an effort to effect a settlement, but he says that this was done owing to the suggestion of the county attorney and his desire to protect his name and keep out of court.

At the hearing in the bastardy proceeding, the prosecutrix testified that the first act of intercourse was had in the afternoon of April 14 in the barn, and she made no mention whatever of what she now alleges occurred some days before on the return from the party heretofore mentioned. Counsel for defense lay much stress upon this feature of her testimony, which she admitted upon this trial to be untrue. It is, of course, a circumstance to be taken into consideration in weighing her testimony. But it must be remembered that she was a young girl, inexperienced in court procedure, in a delicate state of health, and probably testifying for the first time; and prompted somewhat by the natural disposition to shield herself from blame. She failed to tell of this occasion in which she now admits that she consented to the intercourse, but charged her trouble up to the act committed on the afternoon of the 14th, when she insists that she resisted his embraces. After reading in full the testimony which she gave before the jury and her testimony given at the bastardy proceeding, we still believe the jury was warranted in finding the story told on this trial to be true.

It is rarely, if ever, possible to furnish direct corroboration of the principal fact; but, in this case, they were seen together late at night on the date she alleges the first act of intercourse occurred. That opportunity existed on the other dates she alleges is clearly evident from all the testimony. Before the expiration of a month her pregnancy was discovered by the doctor who examined her, and she is not shown to have been in company with any other man who might be the author of her trouble. Defendant admits that he had agreed to consider what he would do for her, and to meet her in North Platte. These facts, together with his own version of the conversations taking place in the office of the county attorney and on the streets of North Platte, are sufficient corroboration.

But defendant, in addition to denying that he ever had improper relations with the girl, argues that she was not previously unchaste, and that the verdict ought to be set aside for that, if for no other, reason. He testifies that on two separate occasions he saw her having intercourse with a man employed on the ranch, named Wesley Randall, and inferentially charges that another man, named Charlie Russell, employed on the ranch, had been found in her room, but states nothing definite as to Russell. The story he tells as to finding her and Randall together is entirely lacking in corroboration. He claims to have had this knowledge for nearly two years and never to have mentioned it to any person until he told it on the witness stand. He was not without the benefit of counsel, and must have known that, if true, this would be a defense. He made no effort to subpoena either Russell or Randall, but trusted to his own uncorroborated statement to blacken the reputation of the girl he was charged with having debauched.

In support of a motion for a new trial, defendant filed affidavits calculated to support his contention that prosecutrix was previously unchaste, but these affidavits are so vague and indefinite that if the statements therein contained had been made to the jury it is not likely they would have been given any serious consideration.

Complaint is made because the court refused to give instructions No. 1 and No. 3 requested by defendant. But the substance of these instructions is covered by the instructions given by the court on its own motion, and these assignments are not well taken.

The verdict is fully sustained...