Wood v. State

• Decision Date: 01 October 1895
• Citation: 46 Neb. 58,64 N.W. 355
• Parties: WOOD v. STATE.
• Court: Nebraska Supreme Court

46 Neb. 58

64 N.W. 355

WOOD

v.STATE.

Supreme Court of Nebraska.

Oct. 1, 1895.

Syllabus by the Court.

1. While, in a prosecution for rape, or an assault with intent to commit rape, the state may only inquire of the prosecutrix whether she made complaint of the injury, and when, and to whom, but not as to the particular facts which she stated, still the defense, in cross-examination, may inquire as to such particular facts.

2. In a prosecution for an assault upon a girl under the statutory age of consent, with intent to commit a rape, whether the girl consented or resisted is immaterial; and to constitute the offense it is, therefore, unnecessary to prove that the defendant intended to use force, if necessary, to overcome her resistance.

Error to district court, Lancaster county; Tibbets, Judge.

Samuel Wood was convicted of assault with intent to rape, and brings error. Reversed.Alex Altschuler and J. C. McNerney, for plaintiff in error.

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

IRVINE, C.

The plaintiff in error was convicted in the district court of Lancaster county on an information charging him with making an assault upon one Louisa Schrader, a female child nine years of age, with intent to commit a rape upon her person. The prosecutrix had testified that immediately after the alleged assault she had made complaint thereof to her mother. On cross-examination she was asked, “What did you tell your mother when you went out there?” This question was objected to as incompetent and immaterial, and the objection was sustained. An offer was then made by the defendant to prove that prosecutrix had made statementsto her mother differing from the testimony she had given upon the stand, and the objection, being repeated, was again sustained. In excluding this evidence on cross-examination, we think the learned district judge erred. Whether, in the examination in chief, the particulars of the complaint may be elicited, or whether the state is restricted to a general inquiry as to the fact that a complaint was made, is a question upon which the authorities are not harmonious. In Reg. v. Walker, 2 Moody & R. 212, Baron Parke said: “The sense of the thing certainly is that the jury should, in the first instance, know the nature of the complaint made by the prosecutrix, and all that she then said. But, for reasons which I never could understand, the usage has obtained that the prosecutrix's counsel should only inquire, generally, whether a complaint was made by the prosecutrix of the prisoner's conduct towards her, leaving the counsel of the latter [evidently meaning the prisoner's] to bring before the jury the particulars of that complaint by cross-examination.” This view has been taken by some courts whose decisions are entitled to the highest respect, and, among text writers, it has received the approval of the late Justice Stephen. These authorities place the admissibility of such testimony on the ground that it constitutes a part of the res gestæ. The prevailing doctrine, however, is that stated by Prof. Greenleaf (3 Greenl. Ev. 213), as follows: “Though the prosecutrix may be asked whether she made complaint of the injury, and when, and to whom, and the person to whom she complained is usually called to prove that fact, yet the particular facts which she stated are not admissible in evidence, except when elicited in cross-examination, or by way of confirming her testimony after it has been impeached. On the direct examination the practice has been merely to ask whether she made complaint that such an outrage had been perpetrated upon her, and to receive only a simple ‘yes' or ‘no.’ Indeed, the complaint constitutes no part of the res gestæ. It is only a fact corroborative of the testimony of the complainant, and, where she is not a witness in the case, it is wholly inadmissible.” This is the view which has been...