Vaughn v. State
| Decision Date | 08 February 1907 |
| Docket Number | 14,655 |
| Citation | 110 N.W. 992,78 Neb. 317 |
| Parties | GEORGE VAUGHN v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Nemaha county: WILLIAM H. KELLIGAR JUDGE. Reversed.
REVERSED.
T. S Stevens and Stull & Hawxby, for plaintiff in error.
Norris Brown, Attorney General, W. T. Thompson and C. O. French contra.
George Vaughn, a young man 22 years of age, was tried in the district court for Nemaha county upon an information in two counts, the first count charging him with rape with force and violence, and the second charging him with the crime of rape with consent, upon the person of one Mina C. Holly. From a verdict of guilty upon the first count he prosecutes error.
1. It is urged that the court erred in refusing a continuance and in refusing a new trial upon the ground of newly discovered evidence material to the defense. These assignments it is unnecessary to consider since, in our view, the judgment of the district court must be reversed upon other grounds. We may say, however, that under the peculiar circumstances of this case, where all the witnesses resided at a distance from the place of trial and where the defendant had so little opportunity to prepare for his defense, a continuance would have been entirely proper.
2. It is next assigned that the verdict is not supported by the evidence. This requires a recital of the main facts as disclosed by the testimony. The offense was alleged to have been committed in Island precinct, in Nemaha county. This precinct was originally a peninsula nearly surrounded by the Missouri river upon the Nebraska side of the stream, but by a sudden avulsion many years ago the river changed its course, and the land lying to the east of the present channel was cut off and thus physically attached to Iowa and Missouri, while legally still a part of Nebraska. Mina Holly, the prosecutrix, lives in Missouri near the boundary line. The defendant, who had lived in the neighborhood several years, at the time of the alleged offense was working for one Cal Taylor, who lived in Island precinct a few miles from the residence of the prosecutrix. Early in January Taylor's wife left home upon a visit, leaving the defendant and Taylor living upon the farm. Taylor's house is distant about four or five miles in a southeasterly direction from the home of the prosecutrix, which is situated about 5 miles southwest of Hamburg, Iowa. On the evening of January 9, 1906, Taylor and Vaughn drove to Hamburg. Vaughn's sister, Rhoda Vaughn, had been visiting the prosecutrix, who had taken her to Hamburg in a buggy. On her way home she met Taylor and Vaughn on the road. Both parties stopped, and Vaughn got out of the buggy, went to the side of the buggy in which Miss Holly was seated, and asked her, as she testifies, to go to a dance that night, which she consented to do, if his sister Rhoda Vaughn went. The men went on to Hamburg and made arrangements with Jennie Fletcher, a cook in a hotel there, and evidently a woman of easy virtue, to go out with them that night. About 8 o'clock Taylor, Vaughn and Jennie Fletcher went to Holly's in a single seated buggy. Holly's house was situated at some distance from the road, at the end of a lane. The buggy was stopped some distance from the house and at a point where it was not uncommon for vehicles to stop when parties were coming to the house. Vaughn went to the door and got Miss Holly, who accompanied him to the buggy. When she got there she found Taylor sitting on Miss Fletcher's lap. She testifies she thought it was Rhoda Vaughn and one Cheney until she got in the buggy when Taylor spoke to her and she knew who it was; that she got in and sat in the seat, and Vaughn sat on her lap until they drove along the lane to the main road, a distance of about a quarter of a mile, and that when Vaughn got out to open the gate at the main road she started to get out, but could not because Taylor held her, though Taylor was sitting on Miss Fletcher's lap, holding the lines and the whip, and she was sitting on the seat on Taylor's left side; that after they left the gate Taylor let her get up and sit on Vaughn's lap; that they went rapidly two miles east, past Jennings', Lane's and Bush's houses; that when they got to Bush's house she took the lines and got the team almost stopped, when Taylor took the whip and hit the horses and made them go faster and took the lines away from her. Her testimony was, in substance, that she was kept in the buggy against her will and was driven from her father's house at a rapid rate of speed to the house of Cal Taylor; that there she was taken into the house; that Taylor and the Fletcher woman went up stairs, leaving her and Vaughn in the kitchen, and that, after prolonged resistance upon her part, Vaughn threw her upon the floor and violently ravished her against her will; that he then pushed her up stairs into a bedroom and repeated the act; that she then went down stairs, and Taylor came down, and Vaughn went up stairs; that Taylor then had forcible intercourse with her against her will; that she ran out of the house and ran as far as she could go, when Taylor came after her and took her back to the house; that after this the others had supper, and that she again tried to get out of the house, but was prevented; that, after the team was hitched up to leave, Taylor and the Fletcher woman again went up stairs, and Vaughn again had forcible intercourse with her. She further testifies that when she was trying to get away from Taylor she ran to the window and he shut it down, when she kicked one of the window lights out and kicked the screen off, then ran back to the door and tore part of the latch off the door in trying to get out.
The story told by the prosecutrix upon her direct examination, if true, would sustain a conviction of the defendant upon the charge of which he was convicted; but upon cross-examination the prosecutrix testified to matters in detail which are extraordinary and so inconsistent and contrary to the nature of things and to the story told upon direct examination that we have serious doubts whether her evidence, taken as a whole, sustains the verdict. She testifies that, though the buggy was driven for four or five miles along a road with six or seven houses standing near, neither along the road nor in front of any of these houses did she make any outcry or in any way resist her forcible abduction by all the means within her power. She did not attempt to turn the horses when she was driving them or to drive up to a house, and after they had turned south on the Island road, and she found she was not going to a dance, they passed several houses. One of them was lighted and was not more than fifteen or twenty feet from the highway. She testifies that when they got to Taylor's house she got out of the buggy herself; that she had a long coat on, reaching below her knees, and it was buttoned the whole evening; that she also wore a heavy wool skirt and a wool waist and had a heavy wool shawl over her head, body and shoulders, reaching nearly to her waist line and she also wore a fur collarette, and that she did...
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