Stapleman v. State
| Decision Date | 03 December 1948 |
| Docket Number | 32427. |
| Citation | 34 N.W.2d 907,150 Neb. 460 |
| Parties | STAPLEMAN v. STATE. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. It is improper to charge a defendant with a felony and a misdemeanor in the same information when the lesser charge is not wholly proved by evidence properly introduced in support of the greater.
2. Where an information improperly charges a felony and a misdemeanor, the trial court on motion will require the state to elect. If no motion is made, the objection is waived.
3. Errors, if any, in receiving incompetent evidence are waived unless timely objection is made thereto when the evidence is offered.
4. An oral instruction to the jury to disregard all evidence in support of a count of an information which was dismissed at the close of the state's case is ordinarily sufficient to protect the defendant from prejudice arising therefrom. If the instruction given is not deemed sufficient, the claim error may be preserved by making timely objection thereto otherwise it is waived.
5. Under the law of this state an accused charged with rape cannot be convicted solely on the uncorroborated testimony of the prosecutrix.
6. If the prosecutrix is corroborated as to material facts and circumstances which tend to support her testimony and from which, together with her testimony as to the particular act the inference of guilt may be drawn, the corroboration is sufficient.
7. It is not reversible error, in the absence of a showing that the defendant was prejudiced thereby, to sentence a defendant after verdict and before the motion for a new trial has been overruled.
8. Evidence examined and held sufficient to support a sentence of eight years in the penitentiary for statutory rape.
Lloyd W. Kelly and Paine & Paine, all of Grand Island, for plaintiff in error.
Walter R. Johnson, Atty. Gen., Home L. Kyle, Asst. Atty. Gen., and C. S. Beck, Deputy Atty. Gen., for defendant in error.
Heard before SIMMONS, C. J., CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.
Plaintiff in error was convicted of statutory rape and sentenced to serve eight years in the state penitentiary. He comes to this court by petition in error to secure a review of the case.
The plaintiff in error was a man 56 years of age at the time of the alleged offense. He had resided in Grand Island for approximately four years. He was engaged in selling used cars and in buying iron, copper, brass, and batteries. He carried on this business at the place of his residence. He lived in a trailer house located on a lot which he owned. He had never married. The prosecutrix was a girl 14 years of age. She had lived in Grand Island with her mother since she was a small girl. She states that he home was about two miles from the home of plaintiff in error.
The evidence shows that plaintiff in error permitted several young people from 13 to 19 years of age to frequent his place. On occasion he would give them food and candy, and give or loan them small amounts of money. Among the young girls who frequently visited plaintiff in error was the prosecutrix, Juanita Davidson. She testifies that on December 27, 1946, at 7:15 p m. she came to the residence of plaintiff in error, who informed her that her sister and other young folks were coming over for a party and importuned her to stay until they came. She says plaintiff in error produced some whisky and that she had several drinks. She says that she 'started getting drunk' and sat down on a cot. Plaintiff in error then made advances which finally resulted in an act of sexual intercourse. Prosecutrix says she then left and went to a nearby ladies rest room until she sobered up. She returned home about 9:30 p. m. and informed her mother that she had been at the home of a girl friend. The following day plaintiff in error came to the home of the prosecutrix and in the presence of her sister and brother told her he wanted to buy her a Christmas present. She went with him and he purchased a coat and dress for her. There is evidence in the record by other girls who visited plaintiff in error to the effect that he had shown them lewd pictures and cartoons and that he had made indecent exposures of his person in their presence. The prosecutrix testifies that these pictures and cartoons were shown to her by plaintiff in error when another boy and girl were present. There is evidence in the record that he made improper advances to one other girl who frequented the place.
Plaintiff in error denies the acts charged. He says that the prosecutrix was at all times unfriendly to him and made no complaint until trouble arose between him and her boy friend over a truck which the latter borrowed and damaged. The evidence shows that no complaint was made by the prosecutrix until five months after the happening of the alleged crime. The record shows further that the complaint was filed after prosecutrix was returned to Grand Island after running away and living with a 19-year-old boy.
The foregoing is substantially the evidence upon which the jury returned a verdict of guilty. Plaintiff in error contends that numerous errors occurred at the trial which require a reversal.
Plaintiff in error was originally charged on seven different counts with crimes ranging from indecent exposure of the person to rape. Five counts were dismissed by the state prior to the trial. The plaintiff in error went to trial on the charges of rape and indecent exposure. At the conclusion of the state's case the count charging indecent exposure was dismissed by the state. Plaintiff in error asserts that it is error to permit a joinder of a felony and a misdemeanor in the same information when the misdemeanor is not wholly proved by evidence properly introduced upon the greater. The foregoing states the rule correctly and if plaintiff in error had moved to require the state to elect upon which count it would proceed, it would have been error not to sustain it. Longsine v. State, 105 Neb. 428, 181 N.W. 175. But in the present case no objection was made to the joinder before or after the trial had commenced. In fact, the record shows an unchallenged statement by the trial judge that 'it is agreed in open court that the defendant shall be tried only on Counts One and Three.' There being no objection made, it will be deemed to have been waived. Aiken v. State, 41...
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