Redmon v. State

• Decision Date: 16 July 1948
• Docket Number: 32412.
• Citation: 33 N.W.2d 349,150 Neb. 62
• Parties: REDMON v. STATE.
• Court: Nebraska Supreme Court

33 N.W.2d 349

150 Neb. 62

REDMON v. STATE.

No. 32412.

Supreme Court of Nebraska

July 16, 1948

Syllabus by the Court.

1. In a prosecution for sodomy, evidence of the immoral character of the prosecuting witness may be shown, and the defendant is not restricted to proof of the general reputation of the witness for truth and veracity.

2. There is one situation in which morality may have a direct connection with veracity, and that is when one person charges another with a sex crime.

3. When a sex crime is charged to have been committed and the prosecuting witness testifies thereto, which is denied by the accused, great latitude should be allowed in the cross-examination of the prosecuting witness.

C E. Sanden and E. J. Jackson, both of Lincoln, for plaintiff in error.

Walter R. Johnson, Atty. Gen., and Homer L. Kyle, Asst. Atty. Gen for defendant in error.

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

PAINE Justice.

In a prosecution by the State in the district court for Lancaster County, the defendant was convicted of sodomy and sentenced to the penitentiary for a period of not less than fifteen years. Defendant brought the case to this court by petition in error.

The evidence discloses that the defendant was 33 years of age and a married man, with one child by his first wife and one born to his second wife before the trial and that his family were living with his wife's father on a farm in Seward County.

The prosecutrix testified that she would be 23 years old in a week; that she was then working in a laundry; and that she lived with her parents, but was not working on May 22, 1947, when the alleged crime took place. She testified that she married a soldier in 1940, when she was 16 years old; that she had two children, one being nearly three years old and the other one eleven months; and that she had separated from her husband about two years before, although he had returned on occasions for a short time, but she was not divorced from him.

The sordid details of the alleged offense, as shown in the bill of exceptions, need not be discussed.

The entire assignments of error on the part of the defendant consist of the two sentences: (1) 'The trial court abused its discretion and prevented the defendant from having a fair trial by sustaining objections to questions asked the prosecutrix on cross-examination and thus excluding evidence that the prosecutrix had many sexual relations with other men.' (2) 'The sentence imposed by the court is excessive.'

The first proposition of law advanced by defendant as a ground for reversal is: 'In prosecutions for sexual crimes, for the purpose of reflecting on the credibility of the prosecutrix, she may be cross-examined to show she is accustomed to having promiscuous sexual relations.'

We have examined all of the many citations of the defendant in support of this proposition and have found many others along the same line. One of the earliest opinions was that in New York of People v. Abbot, 19 Wend., N.Y., 192, in which it was held 'that the general character of the prosecutrix as a common prostitute may be shown; and that the prisoner is not restricted to proof of her general character for truth and veracity, but may give evidence of her general moral character.'

The admissibility of evidence of particular acts of unchastity has been criticized, but has been constantly gaining support. See State v. Patterson, 88 Mo. 88, 57 Am.Rep. 374.

While the crime alleged in the instant case is sodomy, we find few cases thereon, and believe that the same rule governing the admission of such evidence in rape cases is applicable. We find many rape cases holding it was error to refuse to allow the accused to prove the general reputation of the prosecutrix as a common prostitute, if he could do so, as indicating whether she consented to the act charged, and not merely for the sole purpose of impeaching her credibility. See Campbell v. State, 147 Tex.Cr.R. 192, 179 S.W.2d 547; Graham v. State, 125 Tex.Cr.R. 210, 67 S.W.2d 296.

In the brief of defendant, several rulings are specifically pointed out similar to this one. Prosecutrix testified that she lived with her husband off and on; that he leaves Lincoln and stays away, then comes back for short intervals; and she admitted they had family arguments.

Repeatedly during the long cross-examination of the prosecutrix, the defendant attempted in various ways to put in evidence before the jury that the moral character of the prosecutrix was bad. The county attorney met each of these attempts with various forms of objections, generally to the effect that it was improper cross-examination, incompetent, irrelevant, and immaterial, and not tending to either prove or disprove the issues in the case, and no longer an attempt to test the credibility of the prosecutrix, but to get evidence and facts in the minds of the jury theretofore kept out by the court.

The court in repeated rulings held that the purpose of such inquiries was not confined to testing the credibility of the witness, and such objections were therefore sustained in each instance that we can find.

In answer to the defendant's argument and authorities cited, the Attorney General's brief affirms that 'Evidence of general reputation that a female witness is, or has been, not law-abiding, unchaste, or a prostitute, is inadmissible for the purpose of impeaching the witness either upon cross-examination or by way of rebuttal; nor can these facts be shown for the purpose of impeachment by evidence as to specific acts or instances.'

He supports this by the case of Daggett v. State, 114 Neb. 238, 206 N.W 735. In that opinion it is said: 'The state during the course of the trial, in cross-examination and also by the introduction of evidence in rebuttal, sought to impeach two female...