Selvage v. State

• Decision Date: 23 May 1947
• Docket Number: 32196.
• Citation: 27 N.W.2d 636,148 Neb. 409
• Parties: SELVAGE v. STATE.
• Court: Nebraska Supreme Court

27 N.W.2d 636

148 Neb. 409

SELVAGE v. STATE.

No. 32196.

Supreme Court of Nebraska

May 23, 1947

Syllabus by the Court.

To constitute the crime of forcible rape upon a woman of the age of 18 years or upwards, possessed of her natural physical and mental powers and not terrified by threats or force, she must resist to the extent of her ability and persist in such actual resistance, by every means at her command, until the act is consummated.

Leon A. Sprague, of Red Cloud, for plaintiff in error.

Walter R. Johnson, Atty. Gen., and Erwin A. Jones, Asst. Atty. Gen for defendant in error.

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

PAINE Justice.

This is an appeal by defendant as plaintiff in error from a verdict of guilty and sentence for the crime of rape.

The defendant, Byron Selvage, aged 24 years, and a co-defendantEverette Duncan, aged 19 years, were charged in an information with the crime of rape, under section 28-408 R.S.1943, and upon being duly arraigned each entered a plea of not guilty and demanded separate trials, which request was granted.The instant case is that of defendantByron Selvage.After a trial lasting several days, the jury returned a verdict of guilty, upon which verdict he was sentenced to the penitentiary for five years.

The defendant sets out five assignments of error, but it is only necessary in this opinion to consider the first assignment of error, viz., 'Evidence as to resistance by the prosecutrix and corroboration thereof was not sufficient to sustain a verdict of guilty and the court erred in not sustaining the defendant's motion for a directed verdict.'

The prosecuting witness was a young woman 18 years of age, who was doing regular farm work on her father's farm, such as shucking corn, milking, etc., was in good health, and weighed about 140 pounds.She went to a dance in the city of Superior with her brother and the dance closed at about one o'clock in the morning.The evidence does not disclose that she was acquainted with the defendants, although she had a few weeks previously danced with Selvage.They invited her to ride down to a cafe with some others, and told her they would take her home.She thereupon told her brother of this fact, and he drove on home without her.She sat in the back seat of the car with the defendants and visited with them for about twenty minutes while the owner of the car and his 'date' were in the cafe.When he returned the defendants requested him to drive them down to the ball park, which was several blocks away.There the prosecutrix and the defendants got out and the others drove back uptown.The prosecutrix tells that she walked about a block into the park, where intercourse was proposed, which she indignantly refused, and then charges that Selvage forcibly threw her to the ground, tightly held her while the codefendant raped her, and then the other forcibly held her, against her physical resistance and protests, while Selvage raped her.

The evidence discloses that, while this was going on, a car with its lights on drove up and turned within 15 or 20 feet of the prosecutrix, and the two young men very hurriedly got some distance away, while she remained there alone while the car was turning.She made no outcry, not attempted to communicate with the people in the car in any way.There is little doubt, from the evidence, that she could have made an attempt to escape from the defendants at this time, which she did not do.She testified that later, at a different place in the park, each defendant repeated or completed the crime, and then the three of them walked back several blocks to the same cafe and remained inside for about an hour, where they drank coffee and waited to get a car to take them to Nelson.When a car was finally secured to take them, and while the three were riding in the back seat, she testifies that the two defendants, forcibly and against her will, were guilty of similar acts, but that while she resisted to the utmost she made no complaint to those riding in the front seat.

Upon reaching home about 5:30 A. M., she went directly to the bedroom of her father and mother and made complaint, and told them all that had occurred to her.The next day her fath...