Peery v. State, 34062

• Decision Date: 25 January 1957
• Docket Number: No. 34062,34062
• Citation: 80 N.W.2d 699,163 Neb. 628
• Parties: Wesley Harms PEERY, Plaintiff in Error, v. STATE of Nebraska, Defendant in Error.
• Court: Nebraska Supreme Court

Page 699

80 N.W.2d 699

163 Neb. 628

Wesley Harms PEERY, Plaintiff in Error, v. STATE of Nebraska, Defendant in Error.

No. 34062.

Supreme Court of Nebraska.

Jan. 25, 1957.

Syllabus by the Court

1. In a prosecution for rape, after the prosecutrix has testified to the commission of the offense, it is competent to prove in corroboration of her testimony as to the main fact that within a reasonable time after the alleged outrage she made complaint to a person to whom a statement of such an occurrence would naturally be made.

2. The testimony concerning such complaint should, on direct examination, be confined to the fact that complaint was made, and the details of the event, including the identity of the person accused, are not proper subjects of inquiry unless the complaint was a spontaneous, unpremeditated statement so closely connected with the act as to be part of the res gestae.

3. The court in a trial for rape should not inform the jury that such complaint is a corroborating circumstance but the jury should be permitted to give it such consideration and effect in that regard as it decides is proper in the circumstances of the case.

4. If the law requires corroboration of a witness, it must be accomplished by other evidence than that of the witness himself. His acts or statements do not constitute corroborative evidence.

5. In a prosecution for rape, if the prosecutrix testifies to the facts constituting the crime and the accused unequivocally denies the commission of the offense, the testimony of the prosecutrix must be corroborated on material points by other evidence to justify or sustain a conviction of the accused.

6. It is not essential in such a case that the prosecutrix be corroborated by other evidence as to the principal act constituting the offense but it is indispensable that she be corroborated as to material facts and circumstances which tend to support her testimony as to the principal fact in issue.

John R. Doyle, John E. Wenstrand, Lincoln, for plaintiff in error.

C. S. Beck, Atty. Gen., Richard H. Williams, Asst. Atty. Gen., for defendant in error.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

BOSLAUGH, Justice.

Plaintiff in error, designated herein the accused, was convicted of the crime of rape charged to have been committed on the 21st day of January 1956, upon Mary Billingsley, referred to herein as prosecutrix, forcibly and against her will.

The circumstances of the offense as related on the trial by the prosecutrix include the following:

She traveled by automobile on January 21, 1956, about 11:45 a. m., on U. S. Highway No. 6 when she came to the intersection of it with Highway No. 31 north of the town of Gretna. She turned into the latter and was overtaken and stopped by the accused who was operating an automobile which passed her from the rear and was driven on an angle to the right in front of the car of the prosecutrix in such a manner as to prevent her from going forward. Her car was partly off the highway when it was stopped. There was no other traffic in view at that place. The accused approached the prosecutrix as she sat in her car with a gun in his hand which he pointed at her and commanded that she quickly get out of her car and come with him. She obeyed, went to his automobile, and got into the front seat of it. He refused her permission to remove her car entirely onto the shoulder of the road. He drove his car back onto Highway No. 6 and then went south, east, and north, in that order, a distance of probably 6 or 7 miles. He stopped on a north-and-south graveled road. She had never seen him before. There was no conversation except accused asked her if she was going to Council Bluffs and she said she was. She asked permission to smoke a cigarette and to remove her coat. He consented; but when she was about to get a match from her purse, he stopped her and required that she use his lighter. After the accused had stopped on the north-and-south highway he removed his topcoat and while he held the gun on prosecutrix he said to her that he was warning her if she resisted him he would kill her. He ordered her to go over the front seat into the back seat of the car and remove a specified part of her clothing. He got in the back seat and asked if she was frightened. She said that she would not fight, that she did not want him to kill her, and that she would feel much better if he put the gun down. He placed it in the front seat. He exacted and secured from her the intimate indulgence he sought. He had held the gun in his hand with its barrel pointed toward her continuously from the time she first saw him until he placed it in the front seat at the time he compelled her to submit to his demands. She did not physically oppose him because he had told her that he would kill her if she did and she believed he had the means in his control to execute the threat he made to her.

She returned to the front seat as he directed and he then demanded money from her. He took her billfold but returned it when he found it contained only a nominal amount. He expressed disappointment and resentment because she did not have more money. An automobile traveling north passed the car of the accused while it was stopped at the place where prosecutrix was attacked. She did not describe it. The accused drove north on the graveled road an estimated distance of something like 200 yards to a farmstead where there was a mail box near the side of the road. It was not visible from where they had been parked. The prosecutrix saw the car that had passed them near the mail box. A pick-up truck drove out of the farmyard near the mail box. In it were a driver and one other person. There were gas drums or containers visible in the box of the truck. There were persons in the automobile and near the mail box. The accused and prosecutrix passed there about 12:15 p. m. The accused continued to drive north on the north-south road to the first intersection, turned west, and went back to Highway No. 6. He stopped on the road which extended to Highway No. 6 and demanded the name and address of the prosecutrix. She showed him her driver's license. He said he wanted these so that if she told anyone about what had happened, 'I'll come across the bridge.' Accused returned to where the car of prosecutrix was parked and let her out of his car with a warning that whatever she did she should not look back to see where he was going.

She completed her trip to Council Bluffs, went to the office where she was employed, called her employer, and reported to him the facts of her experience with the accused. Her employer went with her to a police station in Council Bluffs and she complained to a police officer concerning the assault made on her and she related the facts thereof. She went to the office of a doctor in that city about 5 p. m. that day and sought, secured, and submitted to an examination by the doctor.

The foregoing demonstrates that the prosecutrix testified to the commission of the offense by the accused and that she thereafter, as soon as the situation permitted when she was released from being a captive of the accused, made complaint of the alleged outrage to those to whom a statement of such an occurrence would naturally be made. She complained to her employer, Kenneth Hubler, and immediately thereafter in his presence at the police station in Council Bluffs she complained to Detective Jorgensen of the police force of that city in which she resided and worked. She says she told each of them of the experience she had had and what was done to her, gave a description of the man who she claimed assaulted her and a description of the automobile he was operating, and described to Detective Jorgensen the items and objects she observed in the automobile. There is absence of corroboration of the prosecutrix by either Kenneth Hubler or Detective Jorgensen because neither of them testified at the trial. It is not claimed that they were not available and no attempt to secure them as witnesses is exhibited by the record. The name of neither of them appears on the information. The State cannot escape the adverse effect of the failure to produce these persons and the information they had at the trial if, in fact, the complaints were made to them as the prosecutrix affirms. In such a situation it was the duty of the State to do so.

In Klawitter v. State, 76 Neb. 49, 107 N.W. 121, appears the following: 'She [the person who claimed to have been debauched] testifies that when they came home from Melchers two of her brothers saw and talked with the defendant, that when she went to Melchers her sister left her with defendant and went home alone, that after the second act of intercourse she told Mrs. Gutch about it, yet none of these persons were called as witnesses to corroborate her statements. If this evidence was within reach it should have been produced.'

It was competent in the circumstances of this case, after the prosecutrix had testified to the commission of the offense, to prove in corroboration of her testimony as to the main fact that after the alleged outrage she made complaint concerning it to her employer and to the police officer. This doctrine is set forth in Krug v. State, 116 Neb. 185, 216 N.W. 664, 666: 'In a prosecution for rape, the prosecutrix may testify in chief, if within a reasonable time under all the circumstances after the act was committed she made complaint to another, to the fact and nature of the complaint, but not as to its details; and that other may likewise testify in chief to such fact and nature of the complaint, but not as to its details. Such testimony, together with all other facts and circumstances in evidence, may be considered by the jury in corroboration of the testimony of the prosecutrix on the trial as to the main fact in issue.' See, also, Rhoades v. State, 102 Neb. 750, 169 N.W. 433; Henderson v. State, 85 Neb. 444, ...