Spaulding v. State
| Decision Date | 06 February 1901 |
| Citation | 61 Neb. 289,85 N.W. 80 |
| Parties | SPAULDING v. STATE. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. Evidence examined, and found to be sufficient to support the verdict of the jury and the judgment rendered thereon.
2. Where an instruction is requested, the substance of which is contained in other instructions given, it is not error to refuse such requested instruction.
3. An instruction requested, which is inapplicable to the issues in the case, and not based on the evidence, is properly refused.
4. Where, in the trial of a criminal case, after submission to the jury, and while the jury was in charge of an officer, one of the jurors separated from the remainder while they went a short distance to eat one of their meals, and it appearing that no one communicated with the one juror during the absence of the others regarding the case, and that no improper influence could have been brought to bear upon him, the rights of the defendant are not prejudiced thereby, and a motion for a new trial because of such separation is not well founded.
5. Where the relation of attorney and client exists, confidential communications between them, or statements made by the client to the attorney, are privileged, and the attorney will not be permitted to testify as to such statements without the consent of the client. Ruling by the trial court sustaining objection to an attorney testifying in the case as to statements made by the prosecutrix held proper.
6. Where a county attorney is disqualified from prosecuting in a criminal case, the trial court may appoint other counsel to prosecute. Order of trial court finding county attorney disqualified, and appointing other counsel to prosecute, held not erroneous.
Error to district court, Madison county; Cones, Judge.
Leland Spaulding was convicted of crime, and brings error. Affirmed.W. M. Robertson and Powers & Hays, for plaintiff in error.
The Attorney General and M. F. Harrington, for the State.
A thorough consideration of the briefs of counsel and an examination of the record in this case convince us that the judgment of conviction rendered in the trial should be permitted to stand undisturbed. The defendant was convicted of the crime of rape. The prosecutrix was a female 19 years of age, who, for about three years prior, had been accustomed to work for others at general housework as a domestic. For a while she was engaged in learning the business of dressmaking, but failed. It is disclosed that, while not feebleminded, as the term is ordinarily understood, she was perceptibly below the average person of her age and situation in intelligence and strength of mind. On the night of the alleged crime she attended an entertainment and dance given by the colored people of Norfolk in celebration of Emancipation Day. Several different persons were concerned in the alleged assault,--some five or six altogether. One obtained her consent to accompany her home at the close of the entertainment. Others, including the defendant, were cognizant of this arrangement, and discussed the matter with a view to a possible disturbance and fight between the party who was to accompany the prosecutrix and one other of the number, all of whom seemed bent on violence in some form or other. By one witness it is testified that the defendant, during the evening, and before leaving the hall, declared, in substance, that they (meaning the party of whom he was one) would prevent the party referred to from accompanying the prosecutrix home, whether she wanted to go with them or not, and that he would have intercourse with her whether she wanted to or not. When the prosecutrix and her escort left the hall about 2 o'clock in the morning, the defendant, with others, was standing at the foot of the stairs leading from the hall. Some remarks were made about others taking the girl home, and about a fight between the escort and one other of the crowd. One of the party took hold of the girl's disengaged arm, and, with the others a short distance in the rear, started towards the place where she was staying. At the railroad crossing the intruding party released his hold, and returned to his companions a short distance behind. The defendant then left the party, and seized the girl's arm, with the suggestion that they get away from the crowd, and she, still accompanied by her escort, traveled with them rapidly along the track of the railroad, leaving the street, and going along and by several coal houses and other buildings usually erected along side tracks, until they were near some stock yards and empty cars standing on the track, where, as claimed by the prosecutrix, she was thrown violently to the ground, and, although offering all the resistance she was capable of, was, by the violence employed by the defendant and others, rendered unconscious, and assaulted by the defendant and some five others. The manner of committing the offense was brutal and bestial, with not the trace of an extenuating circumstance.
It is contended, and with some degree of plausibility, that the elements of force, resistance, and nonconsent are not established by the evidence sufficient to support the verdict of guilty of the crime of rape. As to physical resistance, the evidence is not as strong and conclusive as would usually be expected under similar circumstances. Just what terrorizing effect the unmanly and violent conduct of those connected with the affair had cannot be known. The conduct of the parties to the assault at and after the entertainment was certainly enough to frighten a person of the age of the...
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People v. Gerold
...56 Ill. 299;Thorp v. Goewey, 85 Ill. 611; 1 Greenleaf on Evidence [Lewis' Ed.] § 237; State v. Douglass, 20 W. Va. 770;Spaulding v. State, 61 Neb. 289, 85 N. W. 80;State v. Snowden, 23 Utah, 318, 64 Pac. 479), yet the client himself can waive such privilege, and does do so where he voluntar......
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State v. Cowing
...that a decision on one state of facts can be regarded as determining another controversy. We are especially referred to Spaulding v. State, 61 Neb. 289, 85 N. W. 80, and Baer v. State, 59 Neb. 655, 81 N. W. 857, as containing judicial sanction of a conviction upon facts similar to those at ......
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State v. Cowing
...that a decision on one state of facts can be regarded as determining another controversy. We are especially referred to Spaulding v. State, 61 Neb. 289, 85 N.W. 80, Baer v. State, 59 Neb. 655, 81 N.W. 857, as containing judicial sanction of a conviction upon facts similar to those at bar. I......
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Quinton v. State
...conclude that the facts warranted the action of the court, under section 4917, Comp. St. 1922, and within our holding in Spaulding v. State, 61 Neb. 289, 85 N.W. 80. record does not show that the defendant was prejudiced by the denial of his request for a jury trial on his plea in abatement......