Yeoman v. State

• Decision Date: 09 February 1887
• Citation: 31 N.W. 669,21 Neb. 171
• Parties: YEOMAN v. STATE.
• Court: Nebraska Supreme Court

21 Neb. 171

31 N.W. 669

YEOMAN

v.STATE.

Supreme Court of Nebraska.

February 9, 1887.

Syllabus by the Court.

Plaintiff in error was indicted alone for the crime of incest, under the provisions of section 203 of the Criminal Code. Held, that he was properly so indicted, and that it was not necessary that the indictment should be against both parties to the incestuous intercourse.

Where, in a prosecution for incest, it was proven that the person with whom the incestuous intercourse was alleged to have been had was of the age of 16 years; that she resided at home with her parents; that the accused also resided with the family; that they were often together alone; that she had no suitor, and kept company with no other person; that the relation of uncle and niece existed between them; that she became pregnant, and, when her pregnancy was discovered, the accused confessed the paternity of the child which was afterwards born, admitted the intercourse, and settled the claims of the mother in satisfaction of proceedings in bastardy, and tried to induce a physician to produce an abortion,--it was held that the corpus delicti had been sufficiently proven to require the submission of the case to a trial jury.

On the trial of such case the court charged the jury that it was not necessary that the offense be proven to have been committed on the day alleged in the indictment, but that it would be sufficient if proven to have been committed within three years prior to the finding of the indictment. The instruction was held to be correct.

On a trial of a defendant charged with incest with his niece, the woman was not examined as a witness by the state, but the defendant examined her as a witness in his behalf. On being asked if defendant had ever had sexual intercourse with her, she answered he had not. On the cross-examination, counsel for the prosecution presented her with the affidavit which she had made by which proceedings in bastardy had been instituted, and in answer to his question she stated that she had signed the affidavit. On re-examination she was asked if the signing of the affidavit was voluntary on her part. The question was objected to, and the objection sustained. Held error.

A large discretion is given the district court as to the order in which testimony may be introduced.

Error from Hamilton county.

J. H. Smith, for plaintiff.

The Attorney General, for defendant.

REESE, J.

Plaintiff was indicted for a violation of section 203 of the Criminal Code. The charging part of the indictment was as follows: “That the said John Yeoman, on the first day of July, 1883, in the county of Hamilton and state of Nebraska, being then and there an unmarried man, did then and there unlawfully, knowingly, and feloniously commit fornication with one Amanda Yeoman, by then and there having sexual intercourse with the said Amanda Yeoman, being then and there a niece of the said John Yeoman, as the said John Yeoman and the said Amanda Yeoman well knew.”

The section of the Criminal Code above referred to is as follows: “Persons within the degrees of consanguinity within which marriages are declared by the preceding section to be incestuous and void, who shall intermarry with each other, or shall commit adultery or fornication with each other, or who shall lewdly or lasciviously cohabit with each other, shall be liable to indictment, and upon conviction be punished by imprisonment in the penitentiary not exceeding ten years.”

The trial resulted in a conviction. Plaintiff brings error to this court.

The first question presented is, does the indictment charge an offense within the section above quoted? Stated otherwise, is it competent for the state to charge and prosecute but one of the parties to the incestuous commerce? It is urged by plaintiff in error that the act must be the concurrent act, and by the consent and agreement of both parties to it, and that both parties must be equally guilty, and therefore both must be indicted together. It is true that both must be guilty; that the intermarriage, cohabitation, adultery, or fornication must be by a union of minds as well as of actions. Yet we do not think it necessarily follows that both should be prosecuted jointly. In short, it seems that the rule is the other way. Hintz v. State, 58 Wis. 496, 17 N. W. Rep. 639.

Upon the trial of the cause the father and mother of Amanda Yeoman were called as witnesses, who testified as to the relationship between the parties, (plaintiff in error and Amanda,) and that plaintiff in error resided at their house practically as a member of the family; that Amanda was of the age of 16 years and unmarried; that plaintiff in error and Amanda were often together alone; that she had no other escort and no suitor; that she kept company with no other person; and that she had become a mother, giving birth to an illegitimate child. The father also further testified that, when he discovered the pregnant condition of his daughter, he went to the stable where plaintiff in error was, and said to him: “That girl is in a family way; and he says, ‘Yes; Doc. Davis says so.’ Then he said he ‘did not see how it could be;’ and then he showed me a scabbard, and said ‘that is what they had to use;’ and then directly he says, ‘Shoot me.’ ” He also testified that the bastardy proceeding was settled by the transfer of certain property by plaintiff in error. Another witness, N. W. Titinan, testified that in June or July, 1883, plaintiff in error admitted to him that he had had sexual intercourse with Amanda Yeoman; that she was the third one for him; and that, “if he only had to pay for one out of three, he was getting along pretty well.” Dr. Davis testified that in the fall of 1883 plaintiff in error and Amanda Yeoman came to his office, and that plaintiff requested him to procure an abortion, which he refused to do. This is substantially all the testimony introduced on the part of the state as to the body of the crime. It is now insisted that the corpus delicti was not proven. We think there was sufficient on that point to warrant a submission of the case to the jury. According to the course of nature there must have been sexual intercourse to procure the pregnancy, which was clearly established. It was then competent to prove the defendant's guilt by his own voluntary admissions. But it is contended that the admissions were not competent to prove...