Toth v. State
| Decision Date | 15 May 1942 |
| Docket Number | No. 31197.,31197. |
| Citation | 3 N.W.2d 899,141 Neb. 448 |
| Parties | TOTH v. STATE. |
| Court | Nebraska Supreme Court |
TOTH
v.
STATE.
No. 31197.
Supreme Court of Nebraska.
May 15, 1942.
Appeal from District Court, Douglas County; Sears, Judge.
James Toth was convicted of incest, and he brings error.
Reversed and remanded, with directions.
1. In a prosecution for incest, the evidence of the prosecutrix need not necessarily be corroborated by an eyewitness to the particular act, but it is necessary that she be corroborated as to the material facts and circumstances which tend to support her testimony and to establish or corroborate the truth thereof.
2. Such corroboration may be either by direct testimony or by circumstantial evidence.
3. Incest is not a crime against the wife within the meaning of section 20-1203, Comp.St.1929.
4. The wife of the defendant cannot be a witness against the husband in such an action.
ROSE and PAINE, JJ., dissenting.
Theodore L. Richling, of Omaha, for plaintiff in error.
Walter R. Johnson, Atty. Gen., and Herbert T. White, Asst. Atty. Gen., for defendant in error.
Heard before SIMMONS, C. J., and ROSE, PAINE, CARTER, MESSMORE, and YEAGER, JJ.
SIMMONS, Chief Justice.
The defendant in this action was charged with, and tried for, the crime of incest. He was found guilty, the jury recommending leniency. Motion for a new trial was made and overruled. Defendant appeals.
[3 N.W.2d 900]
He presents first the sufficiency of the evidence to sustain the conviction. The daughter testified to the act and prior occurrences. Supporting her testimony was that of her mother, wife of the defendant, and of members of the family, who testified to circumstances, acts, conduct, admissions, and statements of the defendant. His evidence, by several witnesses, consisted of a denial of the testimony of the state's witnesses, an alibi as to the time of the particular act relied upon by the state, and explanations of parts of the state's evidence and admissions made by the daughter.
The rule is that, in a prosecution for incest, the evidence of the prosecutrix need not necessarily be corroborated by an eyewitness to the particular act, but it is necessary that she should be corroborated as to the material facts and circumstances which tend to support her testimony and to establish or corroborate the truth thereof. Such corroboration may be either by direct testimony or by circumstantial evidence. Bridges v. State, 80 Neb. 91, 113 N.W. 1048. The evidence received by the court for the consideration of the jury has been reviewed. It is in conflict on material points. Assuming that prejudicial error did not occur in its admission, the evidence is sufficient to sustain the conviction.
Over proper objection, the wife of the defendant was permitted to testify at length regarding acts, declarations, and admissions of the defendant, and his conduct toward their daughter, covering a period of years down to and including a conversation had with the defendant while he was in jail awaiting trial. She was further allowed to testify regarding conversations had with the daughter and members of the family with relation to the conduct of the defendant and the alleged offense. The mother and wife was the principal corroborative witness.
It is not our right or duty to pass upon the guilt or innocence of the defendant. Neither may we weigh the moral gravity of the charge made against the defendant. In this case, as in all other criminal proceedings, the state must establish its case by compliance with the rules of criminal evidence and procedure. In this case, as in all others, the defendant's rights must be safeguarded.
We are presented with the legal question as to whether or not the admission of the testimony of the wife was prejudicial error requiring a reversal of the judgment and the granting of a new trial.
Section 20-1201, Comp.St.Supp.1941, provides that, “*** in all cases, civil and criminal ***. The following persons shall be incompetent to testify *** Second. Husband and wife, concerning any communication made by one to the other during the marriage, whether called as a witness while that relation subsists or afterward, except as may be otherwise provided by law. ***” Section 20-1204, Comp.St.1929, provides: “Neither husband nor wife can be examined in any case as to any communication made by the one to the other while married, nor shall they, after the marriage relation ceases, be permitted to reveal, in testimony any such communication made while the marriage subsisted except as is now or may be hereafter otherwise provided by law.” Section 20-1203, Comp.St.1929, applicable here, provides: “The husband can in no case be a witness against the wife, nor the wife against the husband, except in a criminal proceeding for a crime committed by the one against the other ***”. These sections clearly set up a legislative prohibition closing the lips of the spouse “except in a criminal proceeding for a crime committed by the one against the other.” The statute is clear. It means what it says.
Two questions are to be determined affirmatively before the one spouse may be a competent witness against the other. Is it a criminal proceeding? Is it for a crime committed by the one against the other? It should be remembered that in this state “No act is criminal unless the Legislature has in express terms declared it to be so.” Lane v. State, 120 Neb. 302, 232 N.W. 96, 98. See Behrens v. State, 140 Neb. 671, 1 N.W.2d 289. Defendant was tried for a violation of section 28-906, Comp.St.1929, which provides: “If a father shall licentiously cohabit with his own daughter, the father shall, on conviction be punished by confinement in the penitentiary for a term not less than twenty years.”
That this is a criminal proceeding is clear. Is it one for a crime committed by the husband against the wife? The statute makes the offense consist of the act by the father with his daughter. From an analysis of the statute, it does not appear
[3 N.W.2d 901]
that the legislature declared the crime to be one against the wife.
The state, however, cites three decisions of this court which it claims authorize the testimony of the wife against the husband in an incest case. In Lord v. State, 17 Neb. 526, 23 N.W. 507, an attempt was made to charge the defendant with deserting his wife and living and cohabiting with another woman in a state of adultery. The wife was permitted, over objection, to testify as to the marriage and the desertion and to identify the other woman. This court held that it was not error. It may here be noted that by amendment in 1905, Laws 1905, ch. 172 (twenty years after the decision in the Lord case), the legislature provided that the wife is a competent witness against the husband in the desertion cases. See Comp.St.1929, secs. 20-1203, 28-458. The case of Lord v. State, supra, was one that had in it the two elements, desertion and adultery. In reaching its conclusion, it should be noted that this court relied upon certain decisions from Iowa and Texas to which reference will later be made.
Owens v. State, 32 Neb. 167, 49 N.W. 226, 228, was an incest case. In that case the wife did not testify. The bill of exceptions shows that the county attorney argued to the jury that the wife was not called to testify and commented on the defendant's failure to present his wife as a witness. An examination of the briefs reveals that the defendant took the position in this court that it was the duty of the prosecutor to have called the wife as a witness. The attorney general in his brief made no mention of the matter. Under these circumstances this court held that it was the “prosecutor's privilege to have called” her; that it was gross error to permit the argument to go to the jury that the defendant should have called her; and without any discussion of authority, this court said: “In Lord v. State, 17 Neb. 526, 23 N.W. 507, it was held, and consistently maintained, by reason and precedent, that a wife may be called by the state to testify against her husband on an indictment for adultery. This rule remains; and, if for adultery, the more swiftly might she be called on an indictment for incest.”
Hills v. State, 61 Neb. 589, 85 N.W. 836, 837,57 L.R.A. 155, was a prosecution for bigamy. In that case the first wife signed the complaint before the examining magistrate, and later, over objection, testified as a witness for the state. This court, citing Lord v. State, supra, and Owens v. State, supra, and the Iowa cases that were cited in Lord v. State, supra, held: “The wife is a competent witness against the husband in a criminal prosecution for bigamy or adultery, inasmuch as these are crimes specially against her, and not merely against the relation.” Not called to our attention by the state is Harris v. State, 80 Neb. 195, 114 N.W. 168. That case was a prosecution for statutory rape upon a stepdaughter. The wife signed the complaint before the magistrate but does not appear to have testified. There this court, citing Lord v. State, supra, and Owens v. State, supra, held that the wife may sign the complaint against the husband in such a case.
The state further relies upon State v. Chambers, 87 Iowa 1, 53 N.W. 1090,43 Am.St.Rep. 349, and State v. Shultz, 177 Iowa 321, 158 N.W. 539; 4 A.L.R. 1071.
In State v. Shultz, supra, it was held that the prohibition against the wife's testifying against the husband does not apply when the charge is incest, citing State v. Chambers, supra, and Compton v. State, 13 Tex.App. 271, 44 Am.Rep. 703. The statute set out in State v. Chambers, supra, is similar to our own. There the Iowa court, citing its own decisions relied upon by this court in the early opinion and following them, held that a prosecution for incest was a crime against the wife and that she was a competent witness. It is interesting here to note that the Iowa court in State v. Shultz, supra, cited Compton v. State, supra [87 Iowa 1, 53 N.W. 1091,43 Am.St.Rep. 349], as sustaining its position, and in State v....
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