Sweenie v. State
| Decision Date | 09 November 1899 |
| Citation | 59 Neb. 269,80 N.W. 815 |
| Parties | SWEENIE v. STATE. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. After the trial of a criminal action has commenced, it is error for the court to permit the name of a witness for the state to be indorsed on the information.
2. The mischievous effect of giving an erroneous instruction to the jury is not cured by giving another which correctly states the principle of law involved.
3. No presumption of law, either conclusive or rebuttable, arises from the fact that an unmarried man and a married woman had sexual intercourse on one occasion while dwelling together in the acknowledged relation of master and servant.
4. A jury might be authorized, in a proper case, to presume the existence of an adulterous relationship from sporadic acts of sexual commerce.
5. By section 208 of the Criminal Code it is unlawful for persons not joined together in wedlock to live in a state of adultery, either secretly or openly, whether they profess to live in the marital state or not.
Error to district court, Butler county; Bates, Judge.
William J. Sweenie was convicted of crime, and brings error. Reversed.Hastings & Hall and C. H. Aldrich, for plaintiff in error.
C. J. Smyth, Atty. Gen., and W. D. Oldham, Dep. Atty. Gen., for the State.
William J. Sweenie was convicted and sentenced under that provision of section 208 of the Criminal Code which makes it unlawful for any unmarried man to “live and cohabit with a married woman in a state of adultery.” One of the assignments of error is based on the fact that the court, during the progress of the trial, permitted the prosecuting attorney to indorse on the information the name of Louis Straka, who, being afterwards called as a witness, gave material testimony on behalf of the state. The statute makes it the duty of the public prosecutor to indorse on the information, at the time of filing the same, the names of the witnesses by whom he expects to prove the crime charged; and it is further declared that “at such time before trial of any case as the court may, by rule or otherwise prescribe, he shall indorse thereon the names of such other witnesses as shall then be known to him.” By the evident import of the language quoted, the authority to indorse the names of witnesses on the information does not extend beyond the commencement of the trial. “There is no hardship in this rule,” says Maxwell, C. J., in Stevens v. State, 19 Neb. 647, 28 N. W. 304, “and it is clearly in furtherance of a fair trial, and, being a provision of the statute, it cannot be disregarded.” Other cases affirming this view are Gandy v. State, 24 Neb. 716, 40 N. W. 302;Miller v. State, 29 Neb. 437, 45 N. W. 451;Parks v. State, 20 Neb. 515, 31 N. W. 5;Rauschkolb v. State, 46 Neb. 658, 65 N. W. 776;Fager v. State, 49 Neb. 439, 68 N. W. 611. The reception of Straka's testimony over defendant's objection was, therefore, reversible error.
It is conceded that Anna Lissa, with whom it is claimed the alleged crime was committed, lived as a servant in defendant's home during the period in question. This fact, together with the dissolute character of the woman, and the testimony of her discarded paramour, tending to show the commission of a single adulterous act, constituted the salient features of the state's case. Both Sweenie and Mrs. Lissa denied positively that there ever existed any criminal intimacy between them. They also disclosed circumstances indicating the existence of deterrent conditions and the lack of adequate opportunities. The court instructed the jury as follows (instruction No. 6): “That if the jury find from the evidence, beyond a reasonable doubt, that the defendant and Anna Lissa had sexual intercourse during any portion of the time alleged in the information, then the rule of law is that it is presumed that the defendant and said Anna Lissa had sexual intercourse habitually as long thereafter as she was an inmate of defendant's dwelling house.” It being conceded that the parties lived in the same house, the practical effect of the instruction was to advise the jury to convict if a single act of adultery was proven beyond a reasonable doubt. This was error...
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State v. Gardner
...(N. Y.) 438;Cannon v. United States, 116 U. S. 55, 6 Sup. Ct. 278, 29 L. Ed. 561;Commonwealth v. Sliney, 126 Mass. 49; and Sweenie v. State, 59 Neb. 269, 80 N. W. 815. [8] The indictment charges that defendant feloniously resorted to a house of ill fame “for the purpose of prostitution and ......
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State v. Gardner
... ... Moore , 78 Iowa ... 494, 43 N.W. 273; State v. Hasty , 121 Iowa 507, 96 ... N.W. 1115; Wright v. Paige , 36 Barb. (N.Y.) 438; ... Cannon v. United States , 116 U.S. 55, 118 U.S. 355, ... 29 L.Ed. 561, 6 S.Ct. 278, 6 S.Ct. 1064; Commonwealth v ... Sliney , 126 Mass. 49; and Sweenie v. State , ... (Neb.) 59 Neb. 269, 80 N.W. 815 ... The ... indictment charges that defendant feloniously resorted to a ... house of ill fame "for the purpose of prostitution and ... lewdness." The jury was directed to give time and energy ... which should have been expended ... ...
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State v. Purcell
... ... together, as they are always used in a criminal statute in ... the sense of living together in the relation of husband and ... wife. (Words and Phrases, 2d series, vol. 1, p. 750; ... Cannon v. United States, 116 U.S. 55, 6 S.Ct. 278, ... 29 L.Ed. 561; Sweenie v. State, 59 Neb. 269, 80 N.W ... The ... instruction as given ignores two essential elements of the ... offense defined by the statute, that is, living together in ... the sense of cohabiting, and depending in whole or in part ... upon the earnings of a woman of bad repute. Unless ... ...
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State v. Gieseke
...husband and wife, and yet they were not married. We do not see how any other conclusion could be reasonably reached.’ In Sweenie v. State, 59 Neb. 269, 80 N. W. 815, the court say: ‘William J. Sweenie was convicted and sentenced under that provision of section 208 of the Criminal Code which......