#### Jerry J. Hanks v. State of Nebraska.

Filed February 15, 1911.

No. 16,749.

1. Criminal law: Continuance: Discretion oe Court. An application to continue a criminal case which has been set for trial upon a day certain at the request of the accused is addressed to the sound discretion of the trial court, and if it does not appear that the reasons given for requesting the continuance were not known to the accused at the time the order setting his case for trial was made, a judgment of conviction will not ordinarily be set aside because that continuance was not granted.

2. Rape: Evidence. An undergarment worn by the prosecutrix at the time of an alleged criminal assault may, if identified, be admitted in evidence.

3. -: -. If it satisfactorily appears from the evidence that the prosecutrix is not the wife, sister or daughter of the accused, a conviction will not be reversed because no witness testified in direct language to these facts.

4.-: -. The evidence examined and commented upon in the opinion, and *held*sufficient to corroborate the prosecutrix.

5.-: Instructions. “The failure of the court to instruct the jury, that a defendant charged with rape cannot be convicted *465without evidence corroborating the prosecutrix, is not error, unless it appears that such an instruction was requested.” *Edwards v. State.*69 Neb. 386.

6. Error will not be presumed, but must affirmatively appear.

7. Criminal Law: Limitation off Argument. A conviction will not be set aside because the trial court limited counsel to an hour and 15 minutes on a side in which to argue the cause to the jury, although the practice is pot approved.

8.-: Argument: Exception. “Abuse of privilege by counsel in addressing the jury, to be available on appeal, must be excepted to at the time.” *Hill v. State,*42 Neb. 503.

9. -: Jurors: Competency: Review. If the court upon conflicting affidavits finds that a venireman, before being called as a juror in a criminal cause, did not express an opinion that the accused was guilty, this court will not ordinarily hold to the contrary.

10. -: New Trial: Newly Discovered Evidence. A new trial will not be granted for alleged newly discovered evidence cumulative in character and to some extent tending to impeach the ' state’s witnesses with respect to collateral facts testified to by them, where it appears that many of the witnesses relied upon to give the newly discovered evidence testified during the trial, and there is no showing of diligence before trial to procure or present the newly discovered evidence.

Error to tlie district court for Dawes county: Wil-liam H. Westover, Judge.

*Affirmed.*

*Hamer & Hamer, G. T. H. Babcock*and *Earl It. Ferguson,*for plaintiff in error.

*Grant G. Martin, Attorney General,*and *George W. Ayres, contra.*

Root, J.

From a sentence of seven years’ imprisonment in the penitentiary for committing rape, Jerry Hanks, who will be referred to as the accused, has prosecuted a petition in error to this court.

The court did not err in refusing to continue the case. By agreement of the county attorney and counsel for the *466accused, the case had been set for trial on a day certain, and there is no suggestion that the absence of the alleged witnesses was not known to Mr. Hanks or to his counsel at the time that agreement was made, nor is there a sufficient showing of diligence to procure the witnesses for the trial.

Over the accused’s objections the state introduced in evidence a torn muslin undergarment. The prosecutrix testified in effect that the garment was worn by her at the time of the assault; that it was torn by the accused, and that it is in the same condition now that it was except that it has been washed. The evidence was admissible, its probative weight being for the jury. *McMurrin v. Rigby,*80 Ia. 322; *State v. Peterson,*110 Ia. 647.

The evidence discloses that shortly preceding the night of the country ball, where the accused met the prosecutrix, lie boasted’ to friends that he proposed to accomplish his purpose that night; that the accused in company with tbe prosecutrix departed from his uncle’s home where the ball had been given, ostensibly for a buggy ride, but that be drove to a secluded spot at the bottom of a deep cañón and there remained with the prosecutrix for about an hour and that when they returned sbe was exhausted and weeping; that shortly thereafter she made complaint to her sister, and when the accused was brought into her jxresence and charged with the offense, he answered, “He guessed if she (the prosecutrix) said so, he did.” That night the accused went to Iowa where he was subsequently apprehended. The accused stated to his friends, shortly after the offense was committed, that he might have some trouble, but could settle it for $300 or $500, and subsequently offered to pay money to stop the prosecution. The accused was a witness in his own behalf, and, while admitting the intercourse, testified that the prosecutrix readily consented thereto. The jury may be pardoned if they did not believe all of the defendant’s testimony. There are also other material facts and circumstances appearing in the evidence tending in some degree to corroborate the prosecutrix’ statement,

*467There is a conflict in. the evidence concerning the prosecutrix’ appearance, demeanor and statements at the time she returned with the accused from the buggy ride. It was, however, for the jury to say whether they would believe the witnesses for the state, on the one side, or the accused and his relatives, on the other. If that conflict is resolved in favor of the state, there is sufficient corroborative evidence to sustain the verdict. *Murphy v.*State, 15 Neb. 383; *Richards v. State,*36 Neb. 17; *Wood v. State,*46 Neb. 58; *State v. Meyers,*46 Neb. 152; *Henderson v. State,*85 Neb. 444; *McMath v. State,*55 Ga. 303; *State v. Harris,*150 Mo. 56; *State v. Pollard,*174 Mo. 607; *State v. Bedard,*65 Vt. 278; 33 Cyc. 1458. We are also of the opinion that there is sufficient evidence to sustain a finding that the prosecutrix is not the wife, sister or daughter of the accused, although no witness testified in express terms that no such relationship existed.

Not having requested the court to instruct that the prosecutrix should be corroborated, the accused waived the right to have that instruction given. *Edwards v. State,*69 Neb. 386. Although the court did not instruct that there should be no conviction unless the prosecutrix was corroborated, it did, in addition to instructing that the burden was on the state to prove its case beyond all reasonable doubt, caution .the jury that from the nature of the accusation the defendant labored under great difficulty in making out his defense; that they should care* fully consider the evidence and the instructions, and that if the prosecutrix consented, no matter how tardily, and finally voluntarily submitted to the accused, he was not guilty. The instructions seem to have been copied from those given by the trial court in *Richards v. State, supra,*and approved by this court. The court was not assisted by counsel for the accused either by instructions requested or exceptions taken to those given and in our opinion Mr. Hanks has no just ground for complaint with respect to the court’s charge.

The contention that additional instructions were *468privately given to the jury is not sustained by tbe record, and has no support except in tbe affidavit of Mr. Ferguson, counsel for tbe accused, who says that be is reliably informed that such is tbe fact. The county attorney states under oath that tbe jury were charged in the presence of tbe accused and of bis counsel. Error will not be presumed, but must affirmatively appear.

By overruling tbe motion for a new trial tbe court found upon conflicting affidavits that the juror Blundell bad not, before being called into the jury box, expressed an opinion that the accused was guilty. .Neither did the accused or his counsel testify that they did not know Mr. Blundell’s state of mind before he was accepted as a juror, nor did counsel ask Mr. Blundell upon bis *voir dire*examination whether he bad expressed an opinion concerning tbe merits of tbe case. This subject is largely within tbe discretion of tbe trial judge, and we are satisfied, with bis ruling. *Clough v. State, 7*Neb. 320; *Lamb v. State,*41 Neb. 356; *Tracey v. State,*46 Neb. 361.

No objection was made or exception taken to tbe court’s' order that counsel should have but one hour and 15 minutes on a side within which to argue the case to tbe jury. Mr. Ferguson, states, in effect, that as be was closing bis argument and approaching tbe climax of bis peroration, tbe court informed him that bis time was up, and that be was thereby placed in a ridiculous light before tbe jury and bis argument greatly impaired. According to tbe established holdings of this court, the order was not erroneous. . *Kennison v. State,*83 Neb. 391, and cases cited. We again express our disapproval of a limitation to so narrow a period where tbe defendant’s liberty is at stake, but shall not overrule our former holdings. No objections were made or exceptions taken to the arguments of counsel for tbe state at the time they were made, and for this reason no foundation Avas laid to sustain the assignment of misconduct of the assistant county attorney.

Tbe alleged neAvly discovered evidence is largely cumulative; some of it tends in a degree to impeach cer*469tain of the slate’s witnesses with regard to collateral facts testified to by them, but practically all of it will be given, if opportunity affords, by relatives of the accused wiio testified during the trial. The county attorney filed affidavits contradicting these affidavits filed by the accused. There is an entire absence of any showing of diligence on the part of the accused or of his counsel, Messrs. Ferguson and Babcock, wiio had charge of the case up to the time a verdict was returned. Criminal trials would never end if a new trial were given upon the showing made in this case. *Lillie v. State,*83 Neb. 268.

The accused ivas tried in a community where he had resided for years, and wiiere he wras surrounded by a host of relatives, respectable substantial citizens; his counsel were given great latitude in introducing evidence and in cross-examining the state’s witnesses. The prosecutrix and the accused told their respective versions of the transaction, and the jury has said, by their verdict, that the prosecutrix and not the accused should be believed, and w-e are satisfied that the evidence sustains that finding. The court’s charge was fair to the accused, and, independently of the limitation of time within which his counsel were required to present their argument, we find nothing unsatisfactory in the record.

Upon the entire record, there is no error prejudicial to the accused, and the judgment of the district court is

Affirmed.

Fawcett, J., not sitting.