Hanks v. State

130 N.W. 1037, 89 Neb. 203, 1911 Neb. LEXIS 152

Opinions

Sedgwick, J.

The motion for rehearing is based principally upon the insufficiency of the evidence to support the conviction. It is contended that the evidence .does not show beyond a reasonable donbt that the prosecuting witness resisted the advances of the defendant to the extent of her ability. The evidence is not conclusive that she objected with any degree of determination to some of defendant’s conduct of which she now complains. Considering her youth and surroundings, the jury may have found that, although her conduct was not such as is expected of young women of chaste character, she never contemplated that the defendant would attempt the act which constituted the crime, and was surprised and overpowered by him. In view of the character of this evidence and- of the circumstances under which it is alleged that this crime was committed, and especially the youth and former history .and surroundings of defendant, we think that the penalty imposed is too severe. There is some argument in the brief upon matters that are not properly in the record. The technical objections urged have, perhaps, been already sufficiently discussed. The punishment imposed by the district court is reduced to three years’ imprisonment in the penitentiary, and in all other particulars the former opinion is adhered to, and the motion for rehearing is

Overruled.