Whetstone v. State

156 N.W. 1049, 99 Neb. 469, 1916 Neb. LEXIS 47

• Court: Nebraska Supreme Court
• Decided: March 4, 1916
• Docket: No. 19414
• Status: Published

Opinions

Rose, J.

In the district court for Keya Paha county, defendant was convicted of rape, and for that offense was sentenced to serve a term of four years in the penitentiary. As plaintiff in error,-he presents for review the record of .his conviction.

Defendant insists that the sentence cannot be upheld because the verdict, as he views the evidence, is supported only by the uncorroborated testimony of prosecutrix. She was called as a witness, and in direct and positive terms testified to defendant’s felonious act as charged in the information and to the time, place and manner of its commission. She was at the time 15 years and 10 days old. Unless she committed perjury, she was not previously unchaste. Evidence to that effect is not disputed in the record. Her story is believable. A motive for false testimony on her part is not disclosed. Defendant was not eligible as an honorable suitor, because he already had a wife. At the time of the trial prosecutrix was not disturbed by prospects of maternity or by pecuniary demands of illegitimate offspring. There is no intimation of a purpose from any source to demand or extort money from defendant. According to the story of prosecutrix, the offense was committed Saturday night, June 28, 1915,- at the home of Harrison Morrison, a farmer living with his wife and two children five miles west of Norden. Prosecutrix was a relative of Morrison and had been in his home a few days in the capacity of a domestic. In addition to her testimony, there is proof of these facts: During the afternoon of the day mentioned, defendant, alone in a buggy, drove in a roundabout way to the home of Morrison, knowing that it was the latter’s custom to visit Norden with his wife and children Saturday afternoon. Defendant knew that prosecutrix had left her home a few days earlier to go to Morrison’s. When defendant arrived there in the afternoon, all of the Morrison family, including prosecutrix, were absent. Defendant waited there alone until they returned from Norden, though he said he had started to that village, a place to which he did not go. In the evening he and prosecutrix conversed for a time in a little vestibule opening into the kitchen of the Morrison home. Night came on and defendant did not leave. 1-Ie was asked to stay all night, but declined. Finally, his host evinced an intention to retire for the night. Whereupon defendant intimated that he was about to start home. After the Morrisons had all gone to the second floor of the house to retire for the night, defendant went from the kitchen into the sitting-room downstairs, found prosecutrix there alone, and conversed with her. Though he had previously stated that he had stopped at Morrison’s for protection from the rain, and had declined an invitation to stay all night, he left in the rain immediately after he had had the time and the opportunity to commit the crime. Proof of these corroborating facts and circumstances does not depend on the testimony of the prosecutrix. Evidence of the opportunity to commit the crime is uncontradicted. The inclination of defendant to ravish prosecutrix may fairly be inferred from the outlined facts and circumstances proved by other witnesses. Corroboration of a similar nature was held sufficient in State v. McCausland, 137 Ia. 354, the court saying;

“It was shown by the testimony of persons other than the prosecuting witness that defendant was seen with this young girl in a public place at a late hour on the night when the crime is alleged to have been committed, and circumstances were shown from which the jury could he justified in finding that he accompanied her from the place where they were first seen together through the street, and up a flight of stairs, where they entered a darkened room, which according to the story of the prosecutrix was the scene of the offense.”

The direct and corroborating evidence is sufficient to sustain the conviction.

Other assignments of error are directed to the conduct of the presiding judge in interrupting the examination of witnesses, in preventing the answering of questions, and in asking other questions. In these respects the record shows that the trial court protected the rights of defendant, prevented error, and avoided unnecessary cross-examination, without making a mistake or prejudicing defendant.

Complaint is also made of rulings in giving and refusing instructions. No debatable question is raised by such rulings. The charge is exceptionally free from error. Every right of defendant was safeguarded. The instructions given covered the entire case and conformed to established rules of law applicable to the evidence.

Affirmed.

Fawcett, J., not voting.