Swogger v. State
| Decision Date | 07 March 1928 |
| Docket Number | 25509 |
| Citation | 218 N.W. 416,116 Neb. 563 |
| Parties | JAMES O. SWOGGER v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Thayer county: ROBERT M. PROUDFIT JUDGE. Former judgment of affirmance vacated, and judgment of district court reversed.
REVERSED AND REMANDED.
J. T McCuistion, Herman G. Schroeder and J. W. James, for plaintiff in error.
O. S Spillman, Attorney General, Lloyd Dort, contra.
OPINION
This is a rehearing in case reported in 115 Neb. 621. For sufficient reasons the opinion there reported is set aside. Plaintiff in error will be referred to as defendant and defendant in error as the state. Defendant was convicted and sentenced on one of three counts, each charging, on separate dates, a statutory crime committed upon Mary Leach, a 15-year-old girl. There are nine assignments of error, four of which relate to instructions Nos. 1, 5, 9, and 10. No. 1 is said to be erroneous because the trial court submitted all three counts. In the light of instruction No. 12 telling the jury it could find defendant guilty of only one count, we see no error there. Until verdict of guilty, it could not be known to which count their verdict would relate.
If the evidence should show the girl to be chaste before having relations with defendant, and became unchaste by virtue of his acts, the jury might find him guilty of one and not of the other two. It might find him not guilty of the first and second counts and guilty of the third. All depends upon which particular count guilt might be found.
As to instructions Nos. 9 and 10, it is difficult to see wherein they are prejudicially erroneous in themselves. When they, and other instructions, are considered in connection with certain testimony permitted to be received, a difficult question arises which we will notice later. The insufficiency of the evidence will not be considered, in view of our conclusions on the erroneous admission of testimony. Palpable error is not discovered in admission of evidence prior to the cross-examination of defendant. No reference was made to divorce proceedings between defendant and his wife, or improper conduct toward another woman, until defendant was being cross-examined.
Over objections, the county attorney, on cross-examination, repeatedly asked defendant about a petition for divorce previously filed by him, the different charges therein lodged against his wife, his purpose of instituting the suit, and its termination by amicable adjustment. As there had been testimony that defendant contemplated marrying the girl when he could get rid of his wife, such evidence, if in proper order and time, might not be said to constitute reversible error, it being relevant, as corroboration, in an attenuated way, of the girl's testimony as to intimacy between her and the defendant. However, such evidence spent its legitimate force when showing that the defendant sought to rid himself of his wife by divorce, without parading before the jury charges which were cruel and evilly disposed. On another trial this excess zeal may not be shown, and we make no further comment, further than it accentuated later and more certain error.
The same applies to defendant's cross-examination when asked if he had not told a woman witness that he would give her a fine silk dress if she would help him get his wife to Hastings so he could get a divorce. Defendant was asked by the county attorney if he had not, on a certain occasion, gone to the home of a Mrs. Redinger and there conducted himself in a highly improper sexual manner toward her, offering her $ 5, putting his hand on her person and pushing her around the room. After a denial of all such transactions, the county attorney twice asked defendant if he was "as sure of that as the other things you have testified to,"--"as sure of everything else that you have testified to here." These were improper questions and should not be put to any witness.
The apparent purpose of such questions is to lay a foundation for false impeachment argument to the jury upon an immaterial matter, to prove the defendant unworthy of belief in other matters testified to by him, vital to his liberty. Having interrogated the defendant about his conduct toward Mrs. Redinger, on cross-examination, and getting his denial, Mrs. Redinger was called on rebuttal and testified to shocking conduct of the defendant toward her.
The crime with which the defendant stood charged has three elements--(a) carnal knowledge, (b) of a girl under 18 years of age, (c) not having been previously unchaste. Neither motive, intent, nor guilty knowledge is involved. Only in crimes involving motive, intent, or guilty knowledge may evidence of independent crimes, wholly disconnected with the one charged, be received. Leedom v. State, 81 Neb. 585, 116 N.W. 496, is urged as affording ground for reversal. It is not in point. Leedom was charged in one count with a similar crime committed July 20, 1906, and divers subsequent times, without fixing the dates. Counsel for defendant contends some jurors may have found the defendant guilty on one charge, and others on another. The fact that the jury, in the instant case, rendered a verdict of guilty on three counts was corrected, by the jury itself, when instructed by the court to return to the jury room, by finding guilt in the first count and no guilt on the second and third.
We now come to the application of the evidence to several instructions of the court. Instruction No. 9 told the jury that the defendant "cannot be convicted upon the uncorroborated evidence alone of the injured female, if you find it is without corroboration by the facts and circumstances shown in the case." Then followed, "corroboration means to confirm," and it may be by "any facts and circumstances confirming the testimony of the injured female." Laying to one side whether this is a sufficient definition, we come to instruction No. 11 relating to the defendant as a witness. The jury were given the usual cautions as to disregarding defendant's testimony for no other reason than that he is defendant, and told it would not be required "to receive" his evidence "as true." Thus, the instruction permitted discrediting the defendant by any testimony the court had received. No. 15 told the jury they were the sole judges of the credibility of witnesses and that they should take into consideration, among other things, "all the evidence and facts and circumstances proved tending * * * to contradict" the defendant, i. e., if the jurors believed Mrs. Redinger's testimony as to the episode related by her--denied by the defendant--they might discredit all of his testimony.
The instructions themselves are not bad, but the testimony referred to is accentuated by what the court said. The court told the jury his instructions were binding. Without prolonging this discussion, we call attention to Matters v. United States, 244 F. 736, a prosecution for violation of the national banking law, where the insolvency of Matters was a material issue. Evidence was introduced that Matters got insurance money from a widow, which came from her husband's life insurance, which Matters could not repay. The court said Matters was not on trial for defrauding a widow. At page 739, the court said: "Conceding the insolvency of Matters was material, * * * it did not justify the admission of the evidence," because "the primary effect of the evidence was to show that Matters had attempted to defraud Mrs. Johnson out of her money." It was said further:
It has been long recognized that the charge of rape is one of the most difficult to defend. A charge of statutory rape inspires resentment as almost no other charge can do. The fact that the verdict was guilty on three counts, in direct violation of the instructions of the court, is not without significance. To charge an infamous crime is no proof thereof, although a mob-spirit is often aroused thereby. Tried as this defendant was, a small amount of friction could easily fire the minds of jurymen. In effect, the state's attorney, at oral argument, with commendable frankness, conceded error in the admission of the testimony indicated, unless this court will almost revolutionize tried and wise rules relating to the introduction of evidence in criminal cases. We are not inclined to do this. The evidence is sought to be justified by the fact that defendant put his character in issue. There was no evidence offered by the state on that point, except specific instances of dereliction, which was improper.
Eberly, J., in his report for rehearing, called attention to Nickolizack v. State, 75 Neb. 27, 105 N.W. 895, which, in almost every essential, is like this case. The syllabi in the Nickolizack case are decisive, and, as pointed out by Eberly, J., are a reannouncement of Leahy v. State, 31 Neb. 566, 48 N.W. 390, and Myers v. State, 51 Neb. 517, 71 N.W. 33, and cited in Flege v. State, 93 Neb. 610, 626, 142 N.W. 276, and Abbott v. State, 113 Neb. 524, 527, 206 N.W. 153.
For the reasons stated, the former opinion of this court will not be adhered to, and the conviction and sentence of the defendant will be reversed.
REVERSED AND REMANDED.
In setting aside the conviction of defendant, who...
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