Reynolds v. State

• Citation: 27 Neb. 90,42 N.W. 903
• Parties: REYNOLDS v. STATE.
• Decision Date: 27 June 1889
• Court: Supreme Court of Nebraska

27 Neb. 90

42 N.W. 903

REYNOLDS

v.STATE.

Supreme Court of Nebraska.

June 27, 1889.

Syllabus by the Court.

1. In a prosecution for rape there was a conflict in the testimony as to the resistance of the prosecutrix, and also as to the resort to force by the accused. The latter asked an instruction in substance cautioning the jury against prejudice which was liable to be aroused against the accused because of the heinous nature of the charge, and to call their attention to the difficulty of defending against the accusation; and that if the carnal knowledge while she had the power to resist was with the voluntary consent of the woman, no matter how tardily given or how much force had previously been employed, it was no rape. Held, the instruction asked should have been given.

2. Objections were predicated on certain testimony of an expert, but it appeared from the record that the testimony objected to had been first drawn out on cross-examination by the attorney for the prisoner. Held, that the objections could not be considered.

Error from district court, Saunders county; MARSHALL, Judge.Hamilton & Trevitt, for plaintiff in error.

The Attorney General, for the State.

MAXWELL, J.

An information was filed against the plaintiff in error in the district court of Saunders county, charging him with the crime of rape, and on the trial he was found guilty, and sentenced to imprisonment in the penitentiary for four years. A large number of errors are assigned in this court, most of which it is unnecessary to notice. The evidence of the prosecuting witness was received through the aid of an interpreter, and, while it may be true in its principal features, the examination was conducted in such a manner as practically to put words in the mouth of the witness. No objection seems to have been made to this mode of conducting the examination, and it is not ground of error; but as there must be a new trial, and it is evident that the witness has a considerable knowledge of the English language, an effort should be made to take her testimony without the intervention of an interpreter, and as far as possible require her to narrate the facts.

The plaintiff in error asked the court to give the following instruction, which was refused: “(1) The charge made against the defendant is in its nature a most heinous one, and well calculated to create strong prejudice against the accused, and the attention of the jury is directed to the difficulty, growing out of the nature of the usual circumstances of the crime, in defending against the accusation of rape. So you, the jury, must carefully consider all the evidence in the case, and the law given you by the court in making up your verdict. You must find on the part of the woman not merely a passive policy or equivocal submission to the defendant; such resistance will not do. Voluntary submission by the woman, while she has power to resist, no matter how reluctantly yielded, removes from the act an essential element of the crime of rape. If the carnal knowledge was with the voluntary consent of the woman, no matter how tardily given or how much force had theretofore been employed, it is not rape.” In Conners v. State, 47 Wis. 523, 2 N. W. Rep. 1143, Judge LYON, in delivering the opinion of the court, said of an instruction substantially like the one asked in this case: “The charge given by the learned circuit judge to the jury contains a correct statement of the law...