Abbott v. State

204 N.W. 74, 113 Neb. 517, 1925 Neb. LEXIS 143

• Court: Nebraska Supreme Court
• Decided: May 23, 1925
• Docket: No. 24489
• Status: Published

Opinions

Per Curiam./

This was a prosecution for sodomy as defined by a recent statute. Comp. St. 1922, sec. 9777. Vln the information, carnal copulation per os was charged, the alleged victim being a female child not quite five years of age. The venue was Kearney county and the date of the alleged felony was May 19, 1923. Defendant was a physician practicing his profession and conducting a hospital in Minden. He pleaded not guilty, but was convicted and sentenced to serve a term of ten years in the penitentiary. As plaintiff in error'he seeks a reversal of his conviction..

Among the questions presented for review and argued by defendant are the following:

Did the trial court err in overruling a plea in bar? In the county court of Kearney county May 26, 1923, defendant was accused of an assault May 19,1923, upon a female child, and for that misdemeanor was sentenced to pay a fine of $100. While the prosecution for the assault was pending in the district court upon appeal, the information for sodomy alleged to have been committed May 19,1923, was filed in the county court September 4, 1924. To answer the latter charge defendant was bound over to the district court, where he interposed the plea that the information for sodomy was based on the identical, facts charged in the complaint for assault. He contends that the assault charged was included in the 'information for sodomy, that the two offenses could not have been committed by a single criminal act, and that therefore the second prosecution was barred by the first. The facts constituting the plea in bar were put in issue by a reply in which the state took the position that the misdemeanor charged was not based on the facts evidencing the felony of which defendant was accused. By consent, the issues raised by the plea in bar and the reply thereto were tried to the district court without a jury. The decision was in favor of the state. The accusations themselves do not disclose that the unlawful acts charged in the two prosecutions were identical. An examination of the evidence from every standpoint shows that there is a logical view in which the ruling against defendant on his plea in bar is correct. While it is charged in each of the two accusations that the criminal act was committed May 19, 1923, a prior date for each separate offense within the statute of limitations was provable. There is testimony to the effect that the assault occurred May 8, 1923, and the graver offense at an earlier date. The ruling below is free from error, and it follows that a subsequent motion to require an election between charges was properly overruled.

Did the trial court err in overruling a plea in abatement ? The affirmative of this question seems to be based on the following propositions: The original complaint in the county court for sodomy did not contain a valid charge thereof. It failed to state that defendant was a male person over the age of 21 years. While the information in the district court for sodomy was sufficient as such, defendant was deprived of his right to a preliminary hearing under a real accusation. The position thus taken by defendant does not seem to be tenable. The new law says nothing about the age or the sex of the offender. The complaint, however, accused defendant by the name of “Charles” E. Abbott, showing that he is a male person. The revolting-act constituting the statutory offense is charged in direct terms as having been committed by him “unlawfully, wickedly, and feloniously,” indicating criminal capacity to do so. In any event, the charge was made substantially in the language of the statute. The plea in abatement was properly overruled. For the same reasons a refusal to quash the information was free from error.

Did the trial court err in permitting special counsel to assist the county attorney?' For that purpose a capable lawyer was selected and he participated to some extent in the prosecution. It is insisted that this step was unnecessary for the reason the county attorney was able and experienced and that the selection made was objectionable because the special counsel employed was attorney for the father of the child named in the information. It is further contended that special counsel attempted to procure a conviction by means of incompetent testimony prejudicial to defendant. If the trial judge anticipated the vigor of the defense, the subtle questions of law involved, the objections to evidence and the difficulty of proving sodomy without any eye-witnesses except accused, an experienced physician, and his alleged victim a defenseless little girl, the propriety of selecting special counsel to share the duties and responsibilities of the county attorney, however well equipped, was obvious. Society for its own protection calls for the services of able attorneys for the state in criminal prosecutions and the law permits the employment of assistants. An examination of the entire record fails to show error in permitting the employment of special counsel or misconduct on the latter’s part. A substantial reason for setting aside the conviction on this ground has not been given.

Did the trial court err in permitting proof of similar acts of defendant at other times with different victims? A young man was permitted to testify that, when a child, several years earlier, he had been induced by defendant to submit to pederasty, giving details. A little girl stated on the witness-stand that recently, while riding with defendant, he made indecent inquiries. There were objections to testimony of this kind on the ground that it was incompetent. The objections were argued on review at considerable length and there were references to many cases applying the rule that in a prosecution for a crime evidence of a similar crime at another time is inadmissible. There is no doubt about the existence of the general rule, but the admissibility of such testimony under an exception is the test in the present instance. The felony charged is one of peculiar and shocking enormity, the victim a female child of tender years. The criminal impulse which makes such an act possible is unnatural and unusual. The felony itself suggests a carnal pervert. Under exceptional circumstances former instances tending to show that accused had indulged sexual depravity essential to an act like that charged may, in the discretion of the trial court, be admitted in evidence in connection with direct proof of his guilt. This principle is founded in reason and is supported by precedent, though there are opinions to the contrary. See note in 46 L. R. A. n. s. 266 (State v. Start, 65 Or. 178), and 62 L. R. A. 193 (People v. Molineux, 168 N. Y. 264). In admitting this testimony the trial judge does not seem to have abused his discretion. He made it clear to the jury that defendant was not being tried for these collateral incidents and that they were not admitted as proof of the principal fact./

Was the child named in the information a competent witness? She was nearly six years of age in May, 1923, and almost seven when she testified. She was subjected to a preliminary examination by the trial court, and her answers showed a mental development, an intelligence and an understanding of her obligation to tell the truth under oath sufficient to qualify her as a witness. In addition, her testimony on the witness-stand justified the ruling of the trial judge in permitting her to testify. The law does not arbitrarily close the door of disclosure on a little girl who is the victim of, and the only available witness to, carnal violence. In a recent opinion it was said:

“In this state no age is fixed by the statute below which a child is presumed to be incompetent to testify, and there is no rule of law outside of the statute that a child six years of age is incompetent.” Evers v. State, 84 Neb. 708.

Did the trial court err in preventing a psychologist from expressing an opinion as to the effect of parental suggestion' on the imagination of the child 'while between the ages of five and seven years? The obvious purpose of evidence of that kind was to discredit the child as a witness. The trial judge ruled that competency of the witness was a preliminary question for his own determination in the exercise of judicial discretion and that the weight, if any, to be given to her testimony was a question for the jury. In conducting the trial the presiding judge thought the rejected testimony would carry a collateral inquiry beyond proper bounds, and in his ruling there does not appear to be any error prejudicial to the rights of defendant.

Is the evidence insufficient to sustain the conviction? It is argued that there is' no competent evidence of criminal conduct on the part of defendant except uncorroborated and contradicted testimony relating to the alleged assault May 8,1923, an offense charged in a former prosecution and not cognizable in the present ease. With what was said to have occurred on that date excluded, defendant insists that evidence of sodomy at any time and place in Kearney county was wholly wanting. Evidence of the time and place of the alleged assault May 8, 1923, was definite because the parents then suspected for the first time that their child had been abused. The child testified that while alone with defendant he previously on several different occasions committed the felonious act charged. He admitted on the witness-stand that he had been alone with the child in his automobile while making professional calls. Some of the patients upon whom he called in making these trips were shown to have resided in Kearney county. It did not appear that he went out of the county in any instance. He had called for the child at her home and with the consent of her parents took her with him on short professional ■calls. Several months, perhaps a year or more prior to May 8, 1923, she had been for a time a patient under his care in his hospital. Mistreatment then or earlier was not intimated. From the direct testimony and the circumstantial evidence the principal fact, the venue of the crime .and a date within the statute of limitations were fairly inferable. ' ■

Was the conviction erroneous for want of evidence corroborating testimony of the child as to the principal fact? The offense of which defendant was convicted had been recently defined by statute. Comp. St. 1922, sec. 9777. In this state there is no legislative enactment requiring the corroboration which defendant deems essential to a conviction. The rule of evidence invoked by him does not come from the common law. The child was too young and innocent to be a criminal participant in the loathsome act charged. For the same reason she was incapable of being a black-mailer, or a conspirator or an adventuress. In law she was incapable of consenting. In her case reasons for ■corroboration were generally wanting. In a prosecution for sodomy a conviction has been sustained on the uncorroborated testimony of a child. See cases collected in a note on page 1224, L. R. A. 1915E (State v. Stalker, 169 Ia. 396). The state, however, was not driven to the point of relying solely on uncorroborated evidence. There is testimony tending to show in substance the following facts: On May 11, 1923, the child’s father, who had himself been treated professionally by defendant, called at the latter’s office and asked for his bill. Defendant presented a bill for which he at the time received a check. Upon intimation that the child divulged what had occurred, defendant became confused, asked if the matter could be settled, and offered to return the check, but was told in substance that wrongs of that kind could not be compensated in money. The check, given and accepted in payment of a legitimate debt, was never cashed. The intimation as to what the child told was not by its terms limited to the assault. Within a few days defendant left Minden and did not return for more than a year. While absent he had been in Canada for a time and had traveled from one place to another in the United States. On the witness-stand he explained his absence by testimony that his health failed and that he needed rest and recreation. From all the circumstances, however, the jury were free to infer that his long absence was prompted by a desire to escape prosecution and punishment. Evidence of these circumstances did not come, from the child. The principal fact is corroborated by circumstantial evidence.

Error crept into some of the instructions, but, in view of conclusions reached on the principal questions presented, prejudice to defendant does not appear in any ruling of the trial, court. Affirmed.