Younger v. State

• Decision Date: 05 December 1907
• Docket Number: 15,292
• Citation: 114 N.W. 170,80 Neb. 201
• Parties: GEORGE YOUNGER v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

114 N.W. 170

80 Neb. 201

GEORGE YOUNGER v. STATE OF NEBRASKA

No. 15,292

Supreme Court of Nebraska

December 5, 1907

ERROR to the district court for Lancaster county: EDWARD P. HOLMES JUDGE. Affirmed.

AFFIRMED.

James L. Caldwell, for plaintiff in error.

W. T Thompson, Attorney General and Grant G. Martin, contra.

OPINION

LETTON, J.

Plaintiff in error was convicted in the district court for Lancaster county of rape with force and violence upon one Myrtle Furlong, and prosecutes error to this court. A brief statement of the facts is necessary to the understanding of the questions presented. On the night of February 6, 1907, the prosecuting witness, a girl between 15 and 16 years of age, who worked in the office of the Nebraska Telephone Company near Thirteenth and O streets in the city of Lincoln, stopped work at 10 o'clock. A few minutes afterwards she left the office with two other young women, who accompanied her to a candy store, where they spent five or six minutes. From thence she walked to the corner of Fourteenth and O streets, expecting to take an Interurban street car to her home. The car had gone, and she started to walk. She went north upon the west side of Fourteenth street, and had gone between four and five blocks when she saw a man cross the street. He came up and walked beside her for a few steps, and after requesting her to have sexual intercourse with him, which she refused, he seized hold of her, choked her, forced a handkerchief into her mouth as a gag, and dragged her into an alley. He first threw her down on a manure pile near the street, and then dragged her to an empty sleigh about half way in the alley between Thirteenth and Fourteenth streets. He there violently and forcibly tore nearly all her clothing from her person, and committed a forcible and brutal assault. As soon as she was released, he ran away, running west from the scene of the assault. As soon as the prosecutrix could gather the remnants of her clothing about her, she went to the back door of the nearest house and asked admittance. There were three ladies in the house, whom she told she had been assaulted by a negro, and described his appearance and clothing as nearly as she could. The description she gave was communicated by telephone to the police station, and the defendant was arrested about midnight as answering the description given. He was positively identified by the prosecuting witness, both by his appearance and the sound of his voice, and also by another witness who said he saw him about 10 minutes after 10 o'clock that night standing near the intersection of Fourteenth and R streets, near an electric light, a distance of about one and one-half blocks from the alley where the crime was committed, and on the same side of the street where the assailant stood when first seen by Miss Furlong. The defense was an alibi. The defendant's occupation is that of a porter or janitor, taking care of a bank and office at the corner of Eleventh and O streets, a distance of about six and one-half blocks from the alley where the crime was committed. He went upon the stand, and testified that about 10 o'clock that night he was in the bank; that he went from there to a cigar store close by to get a pail of water, and named a number of persons that he saw while he was in the cigar store, a little after 10 o'clock; that he drank in the basement with one Smith, and that he went again to the bank and was mopping the floor until about 20 minutes to 11 o'clock, when he went back to the basement and remained there until after 11 o'clock. Two of the persons whom he stated he saw a little after 10 o'clock in the cigar store testified they saw him there from about 15 minutes to 10 to 10 o'clock, and a witness whom he says he saw about 10:30 testifies that he saw the defendant about 15 minutes to 11 o'clock that night in the basement with the witness Smith. The defendant's testimony is, to some extent, corroborated by the witness "Red" Smith, who testifies, in substance, that about 10 o'clock he saw the defendant attending to his work at the bank; that the witness was in the basement of the building, and that 10 minutes after 10 the defendant had taken a pail of water into the bank from the cigar store, and then came out and went into the cellar where he was; that he heard him in the bank for 15 minutes after he left the cellar; that he saw him again that night at about a quarter of 11 in the basement, where they again drank together, and that it was about 20 minutes between the two times. He fixes the last time the defendant came out of the bank as "in the neighborhood of 10:30." On cross-examination, this witness says that he did not see Younger between 10:15 and 10:40; that he, Smith, left the building after 10:15, and was gone in the neighborhood of 20 minutes; that he was drinking a good deal that night, and that in his references to time he is merely guessing. The day after the assault the prosecuting witness was taken to the police station, and she pointed out the defendant from a number of other colored men as being her assailant. The clothing which the defendant wore when arrested tallied with the description given by the prosecuting witness, and also by the witness Hamilton, who says he saw him at the street corner just a few minutes before the assault.

The first assignment of error is that the court wrongfully refused a continuance. The preliminary examination was held a few days after the assault. The information was filed on February 26. On March 2 the defendant filed a motion for continuance, alleging in substance, as grounds therefor, the existence of excitement and prejudice, want of counsel, lack of time to communicate with his friends, who live in Texas and Colorado, also lack of time to investigate the character of the prosecutrix, and to establish his own good character. This continuance was asked until the next term of court. This motion was presented to the court on that day, but was overruled. The court then set the trial for March 11, and appointed as counsel for the defendant the same attorney that appeared for him in the preliminary examination. On the 5th day of March another motion and affidavit for continuance over the term was filed, somewhat argumentative in form; the substance of it being that counsel, for a number of reasons, was unable to prepare the case for trial in the length of time allowed for that purpose. This motion was overruled, but the case was passed for trial until March 18. On March 18 a third application for a continuance was made, the affidavit of counsel in support thereof being to the effect that a witness in St. Joseph, Missouri, would testify as to the good reputation of the defendant for truth and veracity and virtue and chastity; that counsel had been unable to investigate the reputation of the prosecuting witness in like matters for want of time; and that counsel had been sick during the preceding week and was not able to enter upon the trial of the cause. This motion was overruled and an exception taken. From a consideration of these affidavits, we think the court did not abuse its discretion in overruling the motions. As to the first and second, the court extended the time for preparation for trial. The disheveled, bruised and bloody condition of the prosecutrix immediately after the assault formed such positive evidence of its commission that the same necessity did not exist for the investigation of her character and reputation as in most cases where it is claimed that such an assault had been committed. The testimony of the witness in St. Joseph, as set forth in the third affidavit, standing alone, would not be admissible, since it only alleges that the witness had known the defendant in St. Joseph, and that his reputation in such matters is good, without anything to show how long ago it was that the defendant was in St. Joseph, or that he had ever been a resident there. Proof of reputation is properly confined to the reputation of the individual in the vicinity in which he lives or in which he had resided. There are no facts alleged to bring the testimony offered within this requirement.

The second, third and fourth assignments of error are based upon the contention that the prosecutrix was not corroborated, and that no proof was offered that she "was not a daughter or sister of the defendant." As to the fact of the criminal assault, it is seldom we find a case in which the corroborative testimony is so clear and convincing. The condition of the clothing and body of the prosecutrix immediately after the assault, as testified to by the witnesses who were present at the house of Mrs. Chapman at the time she applied for aid, is conclusive on this point. It is urged that the witness was not corroborated as to the identity of the defendant, but the testimony of the witness Hamilton is...