State v. Newton

• Decision Date: 06 February 1975
• Docket Number: No. 39608,39608
• Citation: 193 Neb. 129,225 N.W.2d 562
• Parties: STATE of Nebraska, Appellee, v. James R. NEWTON, Appellant.
• Court: Nebraska Supreme Court

Page 562

225 N.W.2d 562

193 Neb. 129

STATE of Nebraska, Appellee, v. James R. NEWTON, Appellant.

No. 39608.

Supreme Court of Nebraska.

Feb. 6, 1975.

Syllabus by the Court

1. A motion for continuance or for postponement of trial is addressed to the sound discretion of the trial court and an order denying it will not be disturbed on appeal unless there is a clear abuse of discretion.

2. An affidavit in support of a motion to continue a trial indefinitely until a witness can be found is insufficient where there is no information as to the witness' whereabouts nor any showing that either the witness' personal attendance or testimony will probably be obtained.

Tony L. Fugit, Papillion, for appellant.

Clarence A. H. Meyer, Atty. Gen., Harold S. Salter, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON, and BRODKEY, JJ.

McCOWN, Justice.

This is a prosecution for the crime of statutory rape. The defendant was found guilty by a jury and sentenced to imprisonment for a term of 10 to 15 years. The defendant has appealed.

The victim here was a 16-year-old girl who lived in LaVista, Sarpy County, Nebraska. On the evening of September 3, 1973, one Dorothy Lewis, who lived 2 or 3 blocks away, engaged the girl to babysit at the Lewis home that evening. When the girl arrived at the Lewis house at about 8 p.m., she assumed her babysitting duties, and Dorothy Lewis left her in the home in charge of the children. The evidence for the prosecution showed that the girl called her mother during the evening to advise her that she would be home around 11 p.m. At approximately 2:40 a.m., Dorothy Lewis returned home with the defendant and another man. The defendant told the girl he was to take her home and the girl left with him. Instead of taking her home, the defendant drove in the opposite direction and along a gravel road, where he stopped the car and by force and threats had intercourse with her. The defendant then drove to the victim's home.

Meanwhile, the girl's mother had awakened and discovered that the girl was not yet home. She waited until 2:50 a.m., and then called the Lewis residence. Dorothy Lewis told her that the defendant and her daughter had left earlier but they might have gone to a nearby restaurant for something to eat. The girl's mother called Ms. Lewis again almost immediately and obtained a description and the license number of the car. She awoke her husband and then called the local police department.

At approximately 3:05 a.m., the car drove up to the parents' house, and the girl was let out. She was screaming and hysterical. Her parents were outside. When she got out of the car the defendant immediately drove off. The girl's father followed in his car until he obtained the license number of the car. The arriving police noticed the two cars driving away. The police attempted to talk to the girl but she was not coherent. She was taken to the hospital. After administration of a tranquilizer for her hysteria, a doctor conducted an examination, confirmed the presence of spermatozoa, and testified that there had been intercourse, probably within the preceding 6 hours.

The defendant testified on his own behalf and essentially denied the testimony of all the State's witnesses except to testify that he did drive the girl home from the Lewis residence, with a detour to get cigarettes for himself enroute. He denied that he made any advances toward her and denied that she was screaming or hysterical.

The jury found the defendant guilty after less than 2 hours deliberation. Motion for new trial was denied. Defendant was sentenced to not less than 10 nor more than 15 years imprisonment, and this appeal followed.

Defendant's primary assignment of error centers around the denial of a motion for continuance filed on March 6, 1974, the date set for trial. The continuance was sought to enable the defendant to locate Dorothy Lewis as a witness for the purpose of establishing that the defendant was not with the prosecutrix for a long enough time to commit rape.

The record shows that on November 9, 1973, the defendant and counsel were advised that the case would be set for trial on the next docket call. On December 21, 1973, the case was set for trial. The name of Dorothy Lewis with her LaVista address was endorsed on the complaint as a State's witness in September of 1973. A subpoena was issued for Dorothy Lewis at the instance of the prosecution on February 11, 1974. It was returned unsatisfied on February 19, 1974, with the information that she had...