Richards v. State

• Decision Date: 03 January 1893
• Citation: 53 N.W. 1027,36 Neb. 17
• Parties: RICHARDS v. STATE.
• Court: Nebraska Supreme Court

36 Neb. 17

53 N.W. 1027

RICHARDS

v.STATE.

Supreme Court of Nebraska.

Jan. 3, 1893.

Syllabus by the Court.

1. In a charge of rape, where no complaint was made for about seven months after the commission of the alleged offense, and not until

concealment, by reason of pregnancy, was no longer possible, held, that the statements of the prosecutrix were not admissible in evidence, but independent facts, such as the condition of her clothing at the time, are admissible.

2. Proof of deformity of prosecutrix, as by the want of a hand, is proper, as tending to show diminished power of resistance.

3. A charge of rape, made months after the alleged commission of the same, where there were no marks of violence on the person or clothing of the prosecutrix, or evidence of excitement, or change in her demeanor, cannot be sustained, unless there is very strong corroborating proof of the commission of the offense.

4. Where the accused testifies in his own behalf, and admits the sexual intercourse, but denies the use of force, it is for the jury to determine the facts from the testimony.

5. Instructions, taken together, held to state the law correctly.

6. A juror will not be permitted to state to his fellow jurors, while they are considering their verdict, facts in the case, within his own personal knowledge. He should make the same known during the trial, and testify as a witness in the case.

Error to district court, York county; SMITH, Judge.

Straut Richards was convicted of rape, and brings error. Reversed.

Robert Humphrey and N. V. Harlan, for plaintiff in error.

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

MAXWELL, C. J.

1. March 26, 1888, the prosecutrix, Blanche Sheeks, commenced a term of school about four and one half miles west and one half of a mile south of York, Neb. The term continued until June 10, 1888. She boarded from Monday until Friday at the house of Joseph J. Richards, father of the accused. She was 17, and the accused 19, years of age. They had been acquainted from childhood, having lived as neighbors for many years, but at this date the prosecutrix lived with her father, in the city of York. In September and November of said year, the prosecutrix taught another term of school at the same place. During this term, she boarded at home, but kept her horse at the barn of Mr. Richards. During the spring term the prosecutrix was taken home, on Fridays, and back to her school, on Monday, by some member of her family. The Richards family consisted of father, mother, Albert, Lot, Roy, Pearl, and the accused. On Friday or Saturday evening of the second week of school, no one of the family came for the prosecutrix, and she rode home in a buggy with the accused, who was going after the mail at York. She reached home after dark, spoke kindly to the members of her family, went into the kitchen, and got a drink of water, went up stairs to her room, and was seen no more that night, except by her sister, with whom she slept. On the following Monday, she went back to her school, and continued to board with Mr. Richards during the remainder of the term, where during all that time the accused stayed as a member of the family. The schoolhouse was just across the public road from Mr. Richards. The accused remained a member of his father's family until about October 9, 1888, when, with his sister Pearl, he went to Lincoln, Ill., on a visit, where the Richards family, prior to 1888, had resided, and where two married sisters then resided. In November, 1888, the prosecutrix, being seven months in the family way, made a charge of rape against the accused, saying it was committed on the ride, the 6th or 7th of April, 1888. A requisition was obtained, and the accused was brought back on the charge as far as Lincoln, Neb., where he escaped. He was afterwards arrested at Louisville, Ky., where he was attending a commercial school. In November, 1890, the case was tried, and he was convicted. A motion for a new trial was made, and overruled, and the accused was sentenced for three years in the penitentiary. In impaneling the jury, the court allowed the state to challenge J. W. Small, and exclude him from the jury, for cause. The evidence of Small, in substance, is that he heard the evidence of one witness on the former trial, that he had not paid much attention to it, that he did not form or express any opinion in the case, and that he had no bias or prejudice. Substantially the same objections were made to the jurors Campbell, Miller, and Bohl, and they may be considered together.

A trial court, in impaneling a jury to serve in a particular case, has a very extensive discretion in discharging a person called as a juror who might, as shown by his answers, not make an entirely fit or competent person to serve as a juror. This rule, however, should not be applied to retaining jurors. State v. Miller, 29 Kan. 43; Maxw. Crim. Proc. 581. In the case cited from Kansas, it is said: “We do not think that the court below committed any substantial error, as against the defendant; for, although it may be that Esthisbaum [the juror excused] was not so absolutely incompetent to serve as a juror that the court below could have committed material error by permitting him to serve as a juror, yet it cannot be doubted but that twelve men more competent could easily have been found and obtained to serve on the jury. We can hardly see how the court could commit substantial error by discharging any person from the jury, when twelve other good, lawful, and competent men could easily be had to serve on the jury. Stout v. Hyatt, 13 Kan. 232; Railroad Co. v. Franklin, 23 Kan. 74. There is an immense difference between discharging a juror and retaining him. To discharge him can seldom, if ever, do harm, while to retain him, if his competency is doubtful, may do immense injury to one party or the other.” The reasons given by the Kansas supreme court are satisfactory. The court may, where it appears from the evidence that there is some ground for believing that the juror may not be entirely impartial, discharge him; and error will not lie, provided a fair jury is obtained. The first error assigned, therefore, is overruled.

2. That the court erred in permitting testimony as to the physical condition of the prosecutrix at or about the time the offense is alleged to have been committed, as it appears that she has but one hand. In this there is no error, as the evidence tended to show her inability to resist the alleged force of the accused. The second error assigned, therefore, is unavailing.

3. The third objection is to the failure of the prosecutrix to make complaint for many months after the crime was committed, and proof of her statements when made. The charge is made as having occurred early in April, 1888, while a child was born in January, 1889. The prosecutrix, in her testimony, testifies that the connection was accomplished by force and in timidation, by the production of a revolver at a lonely place on the road, some distance east of the Richards residence; that her drawers were torn by the accused in front, and down one leg; that she did not immediately complain, because the accused told her that her certificate would be revoked, and that she was fearful of certain injuries to herself in case complaint was made. She is corroborated as to the torn condition of her underclothing by her mother. Robert Tucker, a witness called on behalf of the state, testifies that he and another person, armed with a requisition, went to Illinois, and arrested the accused; that he had a number of conversations with him in regard to this occurrence; that at one time he freely and voluntarily said: “Answer. In referring to this matter, Mr. Richards told me that he was very sorry for his family. He said he had a nice family, and his folks would be sorry for him. That he was sorry for his family, and not for himself, but for his mother and his sisters, and the connection of the family. And then he went on and talked in that line, and finally said he expected that he was elected for a term in the penitentiary. I think he termed it the ‘pen.’ He didn't seem to care so much for himself as the others. Question. What did he say about Miss Sheeks? A. He said that Blanche was a nice girl, and that the girl he had left in Illinois was a nice girl. He seemed to have several nice girls on hand just then.” The accused testified in his own behalf, on his direct examination, as follows: “Q. Do you know about the length of time you were coming in? A. Why, no; I don't know exactly how long; but probably it wouldn't be later than about three quarters of an hour. I don't know just exactly. Q. You may state what occurred on the way coming, if any thing. A. Why, after we turned there into the road that runs there by Mr. Hibbard's, we came to a house about forty rods from the corner,--the Frenchman's house,--and about forty rods east from that there is a large draw; and, just before we got to the...