Russell v. State
| Decision Date | 22 November 1906 |
| Citation | 77 Neb. 519,110 N.W. 380 |
| Parties | RUSSELL v. STATE. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
The judge of the district court has power for sufficient reason to adjourn a regular term of court to a future time or without day, and this may be done by an order to that effect sent to the clerk of the court before the time fixed for holding the regular term.
The judge of the district court may call a special term for the transaction of the general business of the court if he deem it necessary.
When the regular panel of petit jurors is quashed for any reason the district court may order jurors to be summoned under section 1681, Cobbey's Ann. St. 1903.
In a prosecution for seduction evidence of specific acts of lewdness on the part of the prosecuting witness is incompetent. If the prosecuting witness was of good repute for chastity prior to the alleged seduction, she is within the protection of the statute. The evidence upon this point should be confined to general reputation for chastity.
A teacher's certificate held by the prosecutrix at the time of the alleged seduction is not competent evidence of reputation for chastity.
The crime of seduction is not complete unless the illicit intercourse is had under promise of marriage. The promise must be an unconditional one; it must be of such a character and made under such circumstances that the one to whom it is made might reasonably rely upon it. A promise conditioned upon pregnancy as the result of such illicit intercourse is not such promise.
The requirement of the statute that the evidence of the female must be corroborated relates both to the act of illicit intercourse and the promise of marriage, and the existence of one of these facts does not necessarily prove the existence of the other nor does it furnish the corroboration required by the statute.
The circumstances relied upon as corroborating the evidence of the prosecuting witness as to the promise of marriage must point so plainly to the truth of her testimony and be of such probative force as to equal the testimony of a disinterested witness.
If the defendant in a criminal case is a witness in his own behalf, it is error to instruct the jury that “if the defendant, by his own testimony, has not denied in any way any material fact proved in the case within his personal knowledge, such testimony or material fact proved, if not denied by the defendant, is admitted by the defendant to be true.” Comstock v. State, 15 N. W. 355, 14 Neb. 205, distinguished.
Error to District Court, Frontier County; Orr, Judge.
Benjamin F. Russell was convicted of crime, and brings error. Reversed and remanded.W. S. Morlan and J. L. White, for plaintiff in error.
Norris Brown, Atty. Gen., W. T. Thompson, Deputy Atty. Gen., L. H. Cheney, C. H. Tanner, and J. L. McPheeley, for the State.
In the district court of Frontier county this defendant was convicted of the crime of seduction, and by these proceedings has brought the judgment of conviction here for review. This crime is defined by section 207 of the Criminal Code. One of the principal contentions of the defendant is that the conviction is not supported by the evidence. In disposing of that question, the evidence in the case will be referred to so far as may be necessary to that discussion.
1. It appears from the record that in fixing the term of court in that county for the year in which this trial was had the judge of the district court ordered that the first term of the district court should be held commencing on the 5th day of March. And afterwards the judge sent from McCook two orders to the clerk of the district court of Frontier county, one of them canceling the regular term for that year, and the other ordering a special term to transact the general business of the court. The manifest purpose of these two orders was to change the date and hold the term one week earlier. There is, of course, no doubt of the authority of the judge to postpone the regular term of court if good reason appears for so doing. He may, for sufficient reason, adjourn the regular term without day. The statute (section 4735, Cobbey's Ann. St. 1903) authorizes the calling of a special term of court in the following words: This would seem to be sufficient authority for the action of the court in calling a special term, and the defendant cannot complain of such action unless he can make it appear that in some particular the statute has been violated. In the order calling a special term the judge directed that a petit jury should be summoned. This was done, and the defendant moved to quash the panel. This motion was sustained, and the court then ordered the sheriff “to summon 24 persons good and lawful men from the body of Frontier county having the qualifications of jurors to appear forthwith and serve as jurors for this present term of court.” This practice is justified by the provisions of section 1681, Cobbey's Ann. St. 1903, which has been many times so construed by this court. We do not want to be understood as recommending the practice of changing the time of holding the regular term of court after the same has been fixed as the law provides. The law does not appear to contemplate such changes for trivial and insufficient reason. If the method pointed out by the statute for securing jurors is disregarded, no doubt the defendant may object to being tried upon a criminal charge before the jury so obtained. In such case the law will presume prejudice. If, however, the provisions of the statute have been complied with, and no prejudice to the defendant appears, it will be presumed that the court had sufficient reason for changing the time of holding the term. This objection of the defendant, then, was properly overruled.
2. Upon the trial of the case the plaintiff showed that the prosecuting witness had been engaged in teaching school, and then offered in evidence her teacher's certificate, after having shown that it was regularly executed by the county superintendent and delivered to the prosecuting witness. It is now objected that this evidence was incompetent, and we think that there is merit in this objection. In the brief for the state it is said that this certificate was not offered It is impossible to say from this record what the counsel for the state had in mind when this certificate was offered. No suggestion appears to have been made at the time that it was offered for any special purpose. The fact that the prosecuting witness was engaged in teaching school was already in evidence, and, if true, was not likely to be contradicted as it could, of course, be absolutely substantiated. This fact was not so material to the prosecution as to make it necessary to show what the qualifications of the prosecutrix as a teacher might be, nor that she was duly authorized to teach, and the evidence in question could have had no effect in the interest of the state unless intended to show that the prosecutrix was of good repute for chastity. For that purpose it was clearly incompetent. The evidence of the county superintendent upon that point in this criminal trial was of no more importance than the evidence of other witnesses and ought in like manner to be subjected to cross-examination.
3. The defendant complains that he was not allowed upon the trial to prove specific acts of lewdness on the part of the prosecutrix for the purpose of establishing her want of chastity. The statute under which this prosecution is brought provides: Criminal Code, § 207. It would seem that the language of our statute is sufficiently explicit to determine this question. Indeed the language is so plain upon this point that it leaves no room for construction. Any female who is of good repute for chastity is within the protection of the statute. No condition is made that she must have deserved that reputation by a correct and pure life, and we cannot extend the statute by construction beyond its plain meaning. Similar statutes in other states have been so construed. Bowers v. State, 29 Ohio St. 542;State v. Bryan, 34 Kan. 63, 8 Pac. 260. In some of the states the statutes defining this crime are essentially different from ours. By the Missouri statutes it is made a crime for any person “under promise of marriage” to “seduce and debauch any unmarried female of good repute.” Under statutes like this there has been some difference of opinion as to the proper construction of the word seduce. Some courts held that this word in itself means to corrupt and to draw aside from the path of virtue, and that one cannot be drawn from the path of virtue unless she is honestly pursuing that path, and that the charge of seduction involves the allegation that the woman seduced was, at and prior to the time of her ruin, of pure character and leading a virtuous life, so that,...
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