Strong v. State

• Decision Date: 05 December 1900
• Docket Number: 11,449
• Citation: 84 N.W. 410,61 Neb. 35
• Parties: LESTER M. STRONG v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

84 N.W. 410

61 Neb. 35

LESTER M. STRONG v. STATE OF NEBRASKA

No. 11,449

Supreme Court of Nebraska

December 5, 1900

ERROR from the district court for Buffalo county. Tried below before SULLIVAN, J. Reversed.

REVERSED AND REMANDED.

Hamer & Hamer, R. A. Moore and H. M. Sinclair, for plaintiff in error.

Constantine J. Smyth, Attorney General, and Willis D. Oldham, Deputy contra.

OPINION

SULLIVAN, J.

The plaintiff in error, having been convicted of an assault with intent to commit a rape upon Caroline Hansen, was, by the district court of Buffalo county, sentenced to imprisonment in the penitentiary for a period of seven years. It appears from the record that on the evening of November 12, 1899 between eight and half past eight o'clock, the prosecutrix was violently assaulted by a young man who had, by falsehood and deceit, induced her to get into his buggy and ride with him to the outskirts of the city of Kearney. On the following morning the defendant was arrested and brought into the presence of Miss Hansen, but she then failed to recognize him as her assailant. It was on the trial virtually conceded that a crime had been committed, and the real question in controversy was whether the prisoner was the criminal. The prosecutrix testified that he was the man who assaulted her, and denied that she had on a previous occasion stated in the presence of Anna and Hattie Wilson that she was unable to identify him. The Wilsons being called as impeaching witnesses testified that Miss Hansen had made the imputed admission. At the conclusion of the trial the court was asked to charge the jury on behalf of the defendant that the testimony of the Wilsons should be considered, tested and its worth estimated under the rules and by the standards applicable to the testimony of other witnesses. This request was refused, but in its stead the court gave instruction number 8, which is as follows: "The witnesses Mrs. and Miss Wilson have testified to facts tending to show that the prosecuting witness made statements to them, or in their presence, concerning the identity of her alleged assailant different from those made in her testimony. You should consider the testimony of these witnesses. If the prosecuting witness outside of court has voluntarily made statements concerning the identity of her alleged assailant different from those made in court, then this should have the effect of weakening her testimony here with you and should be given the effect of weakening her identification of the defendant made here in court in your presence. The extent to which such statements, if any, made out of court weakens her testimony here is for you to determine. If you believe from the evidence that the alleged statements were clearly and understandingly made by the prosecuting witness to the Wilsons, and that they have been accurately remembered and correctly and fully related by the said witnesses in their testimony, then the testimony of the Wilsons should be given great weight as tending to break down and destroy the testimony of the prosecuting witness as to the identification of the defendant. But if it appear that the Wilsons have not correctly remembered the statements of the prosecuting witness, or if she at the time did not clearly express the thought in her mind, or if the Wilsons did not correctly understand her, or if they have intentionally misquoted what she said, or have been influenced to believe that she made statements which she did not make, then the force of their testimony would not be so great." The giving of this instruction was, in our judgment, prejudicial error. The statement which it is claimed the prosecutrix made to the Wilsons was in relation to a matter which was not only relevant to the issue, but of vital importance; and the defendant was entitled to have the evidence of these witnesses...