State v. Fisher , 190 Neb. 742 ( 1973 )

212 N.W.2d 568 (1973) 190 Neb. 742

STATE of Nebraska, Appellee,
v.
Ron FISHER, Appellant.

No. 38967.

Supreme Court of Nebraska.

November 23, 1973.

Charles Plantz, Rushville, for appellant.

Clarence A. H. Meyer, Atty. Gen., James J. Duggan, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON and CLINTON, JJ.

McCOWN, Justice.

The defendant, after trial to the court without a jury, was found guilty of assault with intent to commit rape and sentenced to the statutory minimum of 2 years in prison. The only evidence in the case was the testimony of the prosecutrix. The sole issue on this appeal is whether the evidence is sufficient to sustain the conviction where the evidence consists solely of the uncorroborated testimony of the prosecutrix.

The prosecutrix was 18 years old and employed. The incident occurred in a house in Gordon, Nebraska, where the prosecutrix had a rented room. She testified that she was alone in the house and asleep in her bedroom. The house was unlocked and so was the bedroom. She testified that the defendant first appeared in her bedroom at about 1:30 a. m. on a Sunday morning and asked the prosecutrix where his wife was. She told him that his wife was at her mother's house. The prosecutrix had known the defendant for some years, had dated him occasionally in junior high school, and was a good friend of the defendant's wife. The prosecutrix and defendant visited for a few minutes in the prosecutrix' bedroom and the defendant, who was somewhat intoxicated, then left the house. The prosecutrix testified that some 15 or 20 minutes later the defendant returned to the house and again came to her bedroom and sat down on the bed. They visited for a few minutes. The defendant then put his arm around her waist and said that he was going to rape her. After a struggle on the bed of some 5 minutes, she escaped and ran to the living room trying to reach the telephone. The defendant grabbed her legs and attempted to pull her panties down. After another brief struggle, she managed to escape again. She left the house, and ran to a nearby house where she had visited earlier in the evening. This is the sum total of the prosecutrix' testimony as to the assault, and that testimony was the only evidence in the case. The prosecutrix did not testify that she made a timely complaint or, in fact any complaint to anyone.

At common law, the testimony of the prosecutrix in the trial of all offenses against the chastity of women was alone sufficient to support a conviction and no corroborating evidence or circumstances were necessary. That rule was adhered to in Nebraska at least as late as 1877. In Garrison v. People, 6 Neb. 274, this court held that it was not error to refuse to instruct the jurors that they could not convict the defendant upon the unsupported testimony of the prosecutrix, and that if the jurors were satisfied beyond a reasonable doubt from the testimony of the prosecutrix alone of the guilt of the accused, they would be justified in returning a verdict of guilty.

That rule was changed in 1886 in the case of Mathews v. State, 19 Neb. 330, 27 N.W. 234. After quoting Sir Matthew Hale's statements that rape "is an accusation easy to be made, and hard to be proved, and harder to be defended by the party accused, * * *" this court adopted a rule as to corroborating proof in rape cases. The rule stated was that "where his (the defendant's) testimony expressly denies that of the prosecutrix she must be corroborated to authorize a conviction." That case was the genesis of the judicial rule in Nebraska requiring corroboration in rape cases.

The corroboration rule has been followed in this State since 1886. It has been expressed many times in varying language. The language in some cases, as in Mathews, might be interpreted as limiting the rule to a situation in which the accused testifies and denies the accusation. The latest of those cases is State v. Gero, 184 Neb. 107, 165 N.W.2d 371. There this court said: "In a prosecution for rape, if the prosecutrix testifies to the facts constituting the crime and the accused unequivocally denies the commission of the offense, the testimony of the prosecutrix must be corroborated on material points by other evidence to justify or sustain a conviction of the accused."

The corroboration rule in Nebraska has also many times been stated to be: "Under the law of this state an accused charged with rape cannot be convicted solely on the uncorroborated testimony of the prosecutrix." See, Stapleman v. State, 150 Neb. 460, 34 N.W.2d 907 (1948); Sherrick v. State, 157 Neb. 623, 61 N.W.2d 358 (1953). That statement of the rule was reiterated once more in 1972. See State v. Ferguson, 188 Neb. 330, 196 N.W.2d 374. In none of these cases is there any intimation that the rule is limited to cases where the defendant testifies and denies the charge.

In 1906, the corroboration rule in rape cases was extended to charges of assault with intent to commit rape. In McConnell v. State, 77 Neb. 773, 110 N.W. 666, this court said: "We are fully committed to the rule that, in cases of rape and seduction, the prosecutrix must be corroborated, or, in other words, the uncorroborated evidence of the prosecutrix is not sufficient to sustain a conviction, and we see no good reason, nor is any suggested, why the same rule should not prevail where the charge is assault with intent to commit rape." In disapproving an instruction given to the jury, the court said: "The vice of this instruction seems to be that to much emphasis was given to the idea or thought, that the prosecutrix need not be corroborated by the evidence of any other witness, and thereby the necessity of corroboration was, in effect, lost sight of."

The latest case of assault with intent to commit rape in which the rule has been thus expressed is Miller v. State, 169 Neb. 737, 100 N.W.2d 876. That case held: "A person may not be convicted of the crime of assault with intent to commit rape on the testimony of the prosecutrix alone. Her testimony must be corroborated by other competent evidence." Neither McConnell nor Miller intimates any limitation on the rule.

The State contends that the corroboration rule in cases of rape and assault with intent to commit rape is to be applied only where there is an unequivocal denial by the accused, and that it cannot apply where the accused does not testify. It is quite obvious that the application of the corroboration rule cannot be made to depend on whether or not the defendant denies the prosecutrix' testimony. The defendant is entitled to the presumption of innocence. Garrison v. People, 6 Neb. 274. His neglect or refusal to testify may not create any presumption against him. § 29-2011, R.R.S.1943. No person shall be compelled in any criminal case to give evidence against himself. Article I, section 12, Constitution of Nebraska. Even if we accepted the argument of the State that Nebraska's corroboration rule is limited to cases where there is a denial of the prosecutrix' testimony by the defendant, the defendant's plea of not guilty must be accepted as the equal of an unequivocal denial.

Nebraska is in a small minority of states which have adopted an unqualified corroboration rule by judicial decision. Some others have done so by statute. The majority of states follow the old common law rule but not without qualification. "Thus it is often said, depending on the jurisdiction, that the uncorroborated testimony of the prosecutrix should be received with caution; or that it should be clear and convincing; or that it will not be sufficient where it is incredible, improbable, discredited, or contradictory, or where the defendant denies the charge, or where the prosecutrix does not make prompt complaint, or where the testimony is not consistent with the surrounding circumstances, or where the state's case is weak and the prosecutrix is a mature woman, or where several of such factors are present." Underhill, Criminal Evidence (5th Ed.), s. 762, p. 1753.

We hold that as a matter of law the testimony of the prosecutrix alone and uncorroborated by any other evidence is not sufficient to sustain a conviction for rape, or assault with intent to commit rape. That rule is applicable whether the defendant does or does not testify.

A charge of assault with intent to commit rape necessarily includes a charge of simple assault. See McConnell v. State, supra. The evidence here was sufficient to find the defendant guilty of assault under section 28-411, R.S.Supp., 1972. It was insufficient to sustain the conviction for assault with intent to commit rape.

The judgment is reversed and the cause is remanded.

Reversed and remanded.

BOSLAUGH, Justice (dissenting).

I would affirm the judgment. The corroboration rule, adopted by this court in 1886, requires corroboration only where the defendant testifies and expressly denies the act, or there are circumstances or other evidence which tend to dispute the testimony of the complaining witness. Mathews v. State, 19 Neb. 330, 27 N.W. 234.

The rule relates to the quantum of proof necessary to convict. It is not unlike many other rules which specify the amount of evidence required to make a jury question in a particular type of case.

So far as I have been able to determine, the question presented in this case was not involved in any of the other cases cited as supporting the conclusion of the majority opinion.

WHITE, C. J., and SPENCER, J., join in this dissent.