People v. Brimmage

SCHOTTKY, J. Appellant Henry E. Brimmage and his wife, Mary Roxie Brimmage, were jointly charged by information with two counts of statutory rape and one count of attempted rape. Prior to the trial counsel for appellant made a motion for a separate trial for appellant. It was contended that it would be prejudicial to appellant if a joint trial were held because of the nature of the offenses and because evidence admissible against Mary Roxie Brimmage and not against appellant would be introduced. Appellant contended that the prejudicial effect of this testimony would not be cured by an instruction. The motion was denied by the trial judge and appellant and his wife were tried jointly. ’ Both were found guilty on all three counts, and appellant has appealed from the judgment pronounced on the jury’s verdict.

No question is raised as to the sufficiency of the evidence to support the conviction, so it is unnecessary to detail the sordid evidence relating to the acts. At the trial each of the minor female persons involved testified to the subject matter of the offenses and the surrounding circumstances. Appellant took the witness stand and admitted knowing the girls involved and that they had been at his house, but denied the acts, the subject matter of the alleged offenses. Likewise, appellant’s wife testified in her defense and categorically denied that appellant had committed the acts in question. There was however admitted into evidence a statement taken from appellant’s wife by Undersheriff Ollar after her arrest and prior to trial. In this statement appellant’s wife admitted that each of the minor girls involved had been invited to appellant’s home for [68]the purpose of giving appellant the opportunity to have intercourse with them, and that in substance she had done this because of appellant’s request to her that she do this. Neither of the defendants consented to the testimony of the other defendant against themselves.

At the time that the statement was received into evidence the court instructed the jury that the statement was limited to the case against appellant's wife and could not be considered as evidence against the appellant.

Appellant’s principal contention is that the trial court committed prejudicial error in giving Defendant’s Instruction Number 17, as modified, together with the Court’s Instruction Number 1.

Defendant’s Instruction Number 17, as modified and given by the court, is as follows: