Thompson v. State

• Decision Date: 03 April 1895
• Citation: 44 Neb. 366,62 N.W. 1060
• Parties: THOMPSON v. STATE.
• Court: Nebraska Supreme Court

44 Neb. 366

62 N.W. 1060

THOMPSON

v.STATE.

Supreme Court of Nebraska.

April 3, 1895.

Syllabus by the Court.

1. In a prosecution for the crime of rape, where it appears from the record that the person upon whom the crime was alleged to have been committed was but 16 years of age, had suffered a physical injury which still affected her, and partially deprived her of physical strength, and was “simple-minded,” and acted upon by fear, held, that these facts must be considered by the jury in connection with all the attendant facts and circumstances of the alleged crime, to determine whether the resistance to the act was such as to show nonconsent of the prosecutrix, and to constitute the act rape.

2. The evidence examined, and held sufficient to sustain the verdict.

3. The action of the court in admitting testimony examined, and held not erroneous.

4. Where no objections are made nor exceptions taken to the admission of testimony in the trial court, such action cannot be reviewed in this court.

5. It was assigned for error that the court erred in giving paragraphs 2, 3, 4, 5, 7, 8, and 10 of the instructions given by the court on its own motion, for the reason that under the evidence the court should have instructed the jury to acquit the defendant, and not have submitted the question of his guilt to the jury. Held, that the determination that there was sufficient evidence to sustain a verdict against defendant meets this objection to the instructions.

6. Where, in an assignment of error in a motion for a new trial, it is stated that the court erred in refusing to give a group of instructions, it will be examined or considered no further when it is ascertained that the refusal to give any one of the instructions was proper. Jenkins v. Mitchell, 59 N. W. 90, 40 Neb. 664.

Error to district court, Dawson county; Holcomb, Judge.

William Thompson was convicted of rape, and appeals. Affirmed.Gaslin & Leek, for plaintiff in error.

A. S. Churchill, Atty. Gen., for the State.

HARRISON, J.

During the month of September, 1894, at a term of the district court then being held in the county of Dawson, the plaintiff in error, William Thompson, was convicted of the crime of rape upon one Carrie Brockett, committed May 18, A. D. 1894. After motion for new trial filed in his behalf, the same was overruled, and he was sentenced to confinement in the penitentiary for the period of three years, and he has removed the case to this court, to obtain a review of the proceedings during the trial in the district court.

The assignment of error which seems to be mainly relied upon by plaintiff in error is that the verdict was not sustained by sufficient evidence. In the district court the accused produced evidence of an alibi, but the testimony relating to this branch of the case was conflicting, and it is conceded by counsel in brief filed that the finding of the jury on this subject cannot be disturbed. The testimony discloses that the prosecutrix, Carrie Brockett, was but 16 years of age at the time the crime was committed; that during the month of August, 1893, “she fell off a horse,” and broke her collar bone; and that on May 18, 1894, the date of the alleged crime, her right arm and shoulder felt very sore, and she could not and had not used it to do much heavy work since the time it was injured. She was at the time living with her grandmother, who was very deaf, almost bedridden, and partially demented, and nursing and attending her. They lived in a house in the town of Lexington, and were the only occupants of the house. A physician, who made regular professional calls at the house, to render such medical assistance or relief as was needed by the grandmother, testified that the prosecutrix was a simple-minded girl, or was mentally weak, and not possessed of the average intellect of girls of her age; and there was the testimony of one other witness which was slightly corroborative of the physician's evidence on the subject of the Brockett girl's deficiency in mental development or capacity. The house in which the girl and her grandmother resided was, as she testifies, located about four blocks from the courthouse in the city of Lexington, fronted on the street to the south of it, and there were what they called an “east room,” a “west room,” and a “summer kitchen.' The east room was used as a bedroom by the prosecutrix and her grandmother. There was an outer door to what was called the “west room,” and she states that about 9 o'clock of the evening or night of the 18th of May, 1894, some one knocked at this door, and when she opened it she saw the accused standing there, and he stated to her he had been informed the house was for rent, and requested to be allowed to see the rooms; that she took the lamp, which was then in the west room, and conducted him through the house into the east (or bed) room, into the summer kitchen, and back into the west room; she placed the lamp upon the table, and stood behind a rocking chair, near the table; that the accused talked about the house, and, coming towards her, put his hand upon hers, and then threw his arms about her waist; that she tried to get away from him, and he stumbled over a box; that just then the grandmother called her, and, after asking him to go home, she went into the east room, to see what was wanted; he followed, and she then went again into the west room, after the light, and he immediately followed, closed the door between the two rooms, put his arm or arms around her and held her hands in his, pulled or led her from the door to the table on which the lamp stood, and with one hand turned the light down, and then put his right hand under her knees, and carried her over next to one side of the room, and threw her down She states that during the whole time she was trying to release herself, but was unable to do so; that she did not kick or bite him, or make any outcry, but struggled to get her hand loose, and keep her dress down with her right hand, of which he did not have hold or control; that when he threw her down she said to him, “For God's sake, let me up.” She further stated that when they were on the floor he was by her side; that he obtained control of both her hands, and pulled up her clothes; that she had her feet crossed, and was fighting to keep him off; that he then got on top of her, and put his foot between her legs, and pulled them apart, and accomplished his purpose, got up and sat in a chair, and, when she was getting up, caught her, and pulled her down on his lap, and held her there, and talked to her for possibly a few moments, when she asked him to take his cap and go home, and he went away. When asked if she made any outcry, and why she did not strike him, she answered that she did not because she was afraid of the accused, and she feared him, because he had been drinking whisky, and that she knew this to be so from smelling his breath. She did not tell any person of what had occurred until the following day. The prosecutrix also testified that while at the house the accused told her his name was William Thompson. It further appears from her testimony that there was a house right across the street, and west from this one in which it was alleged the rape was committed; and one just across the road, northwest; and another, the doctor's house, in the adjoining block. It seems very clear from an examination of all the testimony that the finding of the jury to the extent that the party who did the deed fully intended to employ all the force which might become necessary to enforce his will and pleasure, and did use all that became needful to overcome the resistance made by the girl, was sufficiently shown by the evidence; but it is strenuously argued that the prosecutrix did not resist the attacks upon her as energetically as she should, by the use of all the natural agencies and powers which she possessed, and which might have been employed for such purpose; that she made no outcry, and did not kick, bite, or strike the party who made the assault, and that it must be concluded that she consented to the act of sexual intercourse; and the finding of the jury, embracing, as it must have done as one of its constituents, nonconsent on her part, was wrong, and not supported by the evidence. In support of this assignment, the case of Oleson v. State, 11 Neb. 276, 9 N. W. 38, is cited, in which the general doctrine on the subject of resistance in cases of rape was announced in the following language: “To constitute the crime of rape, where it appears that at the time of the alleged offense the...