State v. Otey

1. Evidence — Witness; cross-examination. When a witness on the direct examination has testified that another person, at a certain time, had a certain private disease, and when it is material for the adverse party to show that said disease was contracted prior to the time stated by the witness, he may do so by a cross-examination of the same witness. 2.--And in such case the question may be put in the following form: “ State, if prior to this occurrence, the girl (naming her) had suffered from any private disease.” Wide latitude is allowed in cross-examinations. 8. Information — Practice—Waiver. Objections that an information is not properly verified, are waived by pleading to the merits, and going to trial. 4. Verdict- — Sufficiency of. A verdict finding a defendant “guilty of an attempt to commit a rape.” need not state that the defendant did some act toward the commission of the offense.

Appeal from Douglas District Court. The defendant was charged by information with having committed the crimes of assault and rape. The information stated, “ That on the 4th day of May, 1870', at Douglas county, he, defendant, committed an assault, and then and there carnally know one Anna M-B-, a female child under the age of ten years.” The information was not verified by affidavit of the county .attorney, or complainant; but the defendant, on being arraigned for plea, pleaded “ not guilty,” and the case went to trial, and was tried at the November Term, 1870. "When the complaining witness, the said Anna MB-, was called as a witness the defendant objected, alleging that she was clearly incapacitated. She was examined by the court; she stated she didn’t know the nature of an oath; nor the day of the week; nor the number of days in a week; but she did state, “that if a person tells a lie they will go to the bad place.” The court permitted her to be sworn, and she testified that the defendant had carnal knowledge of her person in the month of May, 1870, in said county. The girl’s mother, Nancy J. B., testified that the girl was under ten years of age; and that defendant boarded at her house at and before the-time the offense was alleged to have been committed. A portion of the evidence given by this witness over defendant’s objection, and some of the questions asked on cross examination and excluded, will be found in the opinion of the court. The witness having given testimony showing that defendant had a private disease, and that after the alleged rape the girl was infected with the same disease, the defendant, on cross-examination, showed that mother and daughter had slept together, and offered to show by the witness, the girl’s mother, “ that she, the mother, was affected with a disease at the time she slept with'the girl Anna M. B., which she might have communicated to the girl, and which disease developed the same symptoms as those developed in the child.” This testimony was objected to by the State and excluded, and' defendant excepted. It is not deemed necessary to set forth the charge of the court, nor the instructions asked and refused. The jury returned a'verdict in the following words : “We the jury find the defendant guilty of an attempt to commit a rape upon the person of Anna M-B-, mentioned in the information.” Motions for new trial, and in arrest of judgment overruled, and judgment on the verdict. Defendant appeals to this court. 1. The witness Anna was not of sufficient age and capacity to testify as a witness. The oath to her was a mere form without meaning. The witness must know and feel the binding obligation of an oath from the general course of religious education. The effect upon the conscience should arise from religious feeling of a permanent nature. It is not sufficient that she says, If she tell a lie she will go to hell. Bex v. Williams, 7 Carr. & Payne, 320. People v. McNair, 21 Wend., 607. Shall a person’s liberty be jeopardized by the tale of a mere child, incapable of knowing right from wrong? The law requires that a moral and religious accountability be felt to a Supreme Being, before it permits a person to testify. 1 G-reenl. .Ev., §471. 2. The court erred in allowing the girl’s mother to testify that '“ after this transaction the girl was affected with disease, of a private nature.” Such testimony would only be legitimate in view of the inference that the discharges resulted from the improprieties of the defendant, and hence inferentially corroborating the statement of the prior witness ; and this is too remote. But having admitted such testimony the court certainly erred in refusing to allow the defendant to show on cross-examination that the girl’s mother was diseased, and that while the two witnesses slept together such disease could be communicated to the girl, and if she had a disease she took it from her mother. It was competent to go to the jury. It was of the same nature as that given by the prosecution against the defendant. The question was proper. The defendant was entitled to the proof, and to exclude it was error. So too in regard to the other question refused by the court. 3. The court erred in overruling the defendant’s objection to the question put to Dr. Y. as to what disease, if any, he found upon the witness Anna M. B. The fact of her being diseased on the 12th day of June should raise no presumption against defendant. The time of the commission of the pretended crime, fixed by the prosecution, was the fore part of May. 4. The court erred in his instructions to the jury. The charge of rape upon a person under ten years of age does not include an assault. The offense does not include an assault, even though an assault be alleged. Regina v. Banks, 8 Carr. & Payne, 574; Regina v. Meredith, id., 589 ; 2 Carr. & Kirw., 957. 5. The motion for a new trial should have been sustained. The verdict is so defective as not to authorize any judgment to be entered upon'it. The verdict finds the defendant guilty of an attempt to commit, etc. This does not comply with the provision of § 283 of ch. 31, relative to crimes and punishments. It does not find that he “ did some act toward the commission of the offense.” There is nothing by which the court can determine that a crime has been committed. It may have been some harmless act, not injuring any one, nor punishable by law. 8 Carr. & Payne, 574, 589. Neither is the finding good under §41 of said statute, as no assault is alleged by the finding. Gen. Stat. 1868, p. 325. 6. The court erred in overruling the motion of defendant in arrest of judgment. The information never had a legal inception. It was the unauthorized act of a volunteer. The statute authorizes proceedings by information on the motion of the county attorney. It is a superseding of the functions of a grand jury, and nothing less than a strict compliance with the law should be held sufficient. Again, the information is not verified. The affidavit of Geo. P. Barker is no verification within the statute. (Crim. Code., §67.) It is required that the information be verified by the prosecuting attorney, complainant, or some other person; evidently intending to provide for a verification by a person cognizant of the facts, or on the information and belief of a person properly informed. 1. The prosecuting witness was competent because she knew enough to satisfy both the theologian and the lawmaker; she knew that if she lied she would go to jail here, and to the bad place hereafter. Cases of this kind necessarily rest upon the particular circumstances of the individual case, and no generalization of the law can afford a safe rule to govern all cases. The hooks abundantly show this. A careful examination of the authorities will show that the two rules — the ancient and the more modern one — would seem to be— first: That a witness is competent to testify if he believes in the being of a God, and that divine punishment will be the certain consequence of perjury; And second: He is a competent witness if he is capable of distinguishing between good and evil, and knows the nature of an oath. 1 Phillips on Ev., pp. 2 to 7; 1 Greenl. on Ev., § 367; 10 Michigan, 372. 2. The question put to the girl’s mother respecting herself was properly ruled out for two reasons; it was not proper cross-examination; and the testimony does not show that the child was in the habit of sleeping with her mother. So too was the question respecting the time when the girl was diseased. It was neither proper cross-examination nor re-cross-examination; and the reason assigned by counsel for wanting to prove the fact in question by a witness for the prosecution presents the novel spectacle of a party desiring to prove an affirmative fact essential to his defense, by a witness whom he will not make his own because he intends to impeach her character for truth and veracity. 3. Our statute (p. 323, § 31) makes it an assault to rape a child under ten years of age. Even if it were otherwise, the instruction of the court worked no injury to defendant as the jury did not find him guilty of “an assault with intent to commit a rape.” See 8 Carr. & Payne, 883, 392; also note b, p. 372. 4. If the county attorney, or any one recognized by the court as acting county attorney, appeared and prosecuted, it is immaterial whether the proper officer wrote the information or had it done. The information shows all the jurisdictional facts on its face. Even if this were not sufficient, the error, if any, cannot he taken advantage of by motion in arrest of judgment. A plea in abatement should have been filed. The question as to whether the information was properly verified is a more serious one; but whether well verified or not the objection comes too late, after a plea in bar. It should have been made by plea in abatement. 5. The verdict is good. It is no more requisite to find a person guilty of an attempt to commit a crime to state in the verdict that the defendant “did some act toward the commission of a crime,” than it would be in a conviction of an assault with intent to commit rape, to set forth the facts and circumstances constituting the assault.