Hubka v. State ( 1925 )

Day, J.

Joseph F- Hubka, hereinafter referred to as the.defendant,, was conyicted in, the district court for Gage county of the crime, of . statutory rape, and , , sentenced to a, term of fw-epty .yea^s.in the penitentiary.,; .,

Alleging, that there .was error upon .trial,;,tb,e defendant has: brought the-record of his conviction to .this: court for review. -In-the information-the venue was laid in Gage, county. Upon the oral, argument two main questions were urged for a reversal of the judjgment: First-, that the: evidence is not sufficient to. support the judgment because the venue was. .not established; second,, that the sentence.Imposed was unduly oppressive. - ■ >'...

The defendant, while a witness in his own behalf, admitted the act of intercourse, but testified that it occurred in Johhson county, which is the county - directly east of Gage county. It is elementary that the venue is one of the essential elements to be established in'criminal prosecutions. The record shows that'at the1 time in question : the prosecutrix was almost 17. years of age; that she-and-the defendant, a young man just past 21 years of age, , were out riding in an automobile. The prqsecutrix testified that the act of intercourse took place in-Gage county about .2 or 214 miles east of the village of Filley, which was. '3-1/2. miles west of the Johnson county: line.- She described, the locatioxl with considerable minuteness! -'Other witnesses -testified the. place -which'she described was >in Gage.tcounty; Some effort was-made to discredit her testimony1 by showing that upon the preliminary 'examination' she had testified, that the place where the act occurred was 5 miles-east , of Filley, which would be in Johnson county. Upon the trial she testified that she had not made such -a statement. Under this state of the record, it was clearly for the jury to determine whether the venue, as charged, had been established beyond a reasonable doubt. ’ It being a question for the jury and their finding being supported by the evidence, we are not disposed to disturb their verdict.

It is next urged that the penalty imposed was unduly oppressive. Our statute, in so far as applicable to the present situation, provides in substance that if . any male person of the age of 18 years or upwards shall carnally know any female child under the age of 18 years with her consent, unless such female child is over 15 years of age, and previously unchaste, he shall be deemed "guilty of rape, and shall upon conviction be imprisoned not less than three years nor more than twenty years. It is obvious from this wide range in the penalty prescribed for this offense that the legislature had in mind that cases might arise in which the minimum as well as cases in which the maximum penalties would properly apply. In our view the present case does not call for the extreme penalty. This case is not one where an assault or violence was resorted to. The prosecutrix assented to the act, although under the statute she could not consent to the violation of her person. It was a moral surrender on the part of both.

An examination of cases in this court involving somewhat similar circumstances discloses that the sentence imposed in this case was far more severe than in any other case we have been able to find. In view of the entire record, we think the ends of justice will be served and the law vindicated by reducing the penalty from twenty years to three years.

In the brief other alleged errors are discussed, including criticism of the instructions given by the court. We find no merit in these alleged) errors. The defendant’s rights were carefully protected. and the issues submitted to the jury under proper instructions.

As thus modified, the judgment of the district court is affirmed.

Affirmed : Sentence reduced.