must be acquitted, "unless you find from the [ SEDGWICK, J. [1] The defendant, who evidence, beyond a reasonable doubt, that the is plaintiff in error here, was convicted in defendant committed the act so elected, and as to this act you cannot find the defendant guilty on the evidence of Mary Waddick alone, as to the act; she must be corroborated by testimony other than her own"-was properly refused, for, although this language might be considered a correct technical statement, still, in the connection asked, the language might probably be misleading to the jury. [Ed. Note.-For other cases, see Rape, Cent. Dig. §§ 88-100; Dec. Dig. § 59.*] He the district court for Hall county of the crime of statutory rape upon one Mary Waddick, then under the age of 15 years. alleges that the complaining witness is whol y uncorroborated; that the evidence is entirely insufficient to support the conviction; that by various erroneous rulings of the trial court he was prevented from having a fair trial; and that the prosecuting attorney was 5. CRIMINAL LAW (§ 814*)-INSTRUCTIONS-guilty of misconduct which tended to prejuDISTINCT CRIMES-ELECTION. When upon the trial there is evidence tending to prove several distinct crimes, and the prosecution has been required to elect upon which it will proceed, the court should so instruct the jury in the submission of the case. It is erroneous, under such circumstances, to instruct the jury: "You are instructed that if you should find from the evidence, beyond a reasonable doubt, that any act of sexual intercourse did take place between the defendant and said Mary Waddick, and that at the time of said intercourse the said Mary Waddick was under the age of 15 years, then you should find the defendant guilty as charged in dice the jury against him. When the first complaint was filed against the defendant, it was charged that the crime was commit. ted on the 1st day of May, 1911. In a second complaint it was alleged that it was committed on the 1st day of April; and in the indictment afterwards found by the grand jury it was charged that the crime was committed on the 1st day of May. This indictment was returned on the 15th day of November, 1911. The complaining witness gave birth to a fully developed child on the 24th day of November, 1911. The complaining witness testified that she went into defendant's store in the evening and asked to see a pair of roller skates; that the defendant, who was 6. Rape (§ 17*)-WITNESSES (§ 268*)-CRIM-alone in the store at the time, showed her the indictment." [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.*] INAL PROSECUTION-ADMISSIBILITY OF EVI- a pair of skates and told her that the price In a prosecution for rape of a female was $3.50; that she told him she could not child under 15 years of age, it is not a defense buy them, for she hadn't the money; and that others have also abused the child in the that he then offered to give her the skates if same manner; but when the fact that the prosecuting witness has given birth to a child is she would sometimes run errands and otherrelied upon by the state as evidence, and in wise accommodate him. She knew what he her testimony she has denied having had inter-meant and at first refused, but afterwards course with any one other than the defendant, she may properly be cross-examined as to consented. Thereupon the crime was comcircumstances tending to show that another mitted in the back room of the defendant's than the defendant is the father of her child. store, while she was sitting on the back part [Ed. Note.-For other cases, see Rape, Cent. of an automobile. It was repeated in about Dig. 20; Dec. Dig. § 17;* Witnesses, Cent. Dig. 88 931-948; Dec. Dig. § 268.*] a week later. She was a witness in the pre7. CRIMINAL LAW (§ 719*)-TRIAL-ARGU-liminary examination before the justice of MENTS OF COUNSEL. Arguments and insinuations to the jury, not based upon competent evidence are improper, and, although not so willful and prejudicial as to require a reversal of the judgment, are indicated in the opinion to be avoided at a future trial. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1669; Dec. Dig. § 719.*] 8. RAPE (8 64*)-PUNISHMENT. The crime of rape upon a child under the age of consent is a serious one; and we cannot say that, if the defendant is guilty as charged, a sentence of seven years' imprisonment in the penitentiary is beyond the reasonable discretion of the trial court. [Ed. Note.-For other cases, see Rape, Cent. Dig. 105; Dec. Dig. § 64.*] Rose, J., dissenting. Error to District Court, Hall County; Paul, Judge. mauded. the peace, and testified that this crime was first committed in the latter part of March, and while she was sitting upon a sewing machine. The defendant was in Illinois from the 10th to the 25th of March. There was no sewing machine in his back room; but it appears that there was a dismantled automobile there during the month of March. It was shown by the evidence of experts that the average period of gestation is about 280 days, varying considerably, but seldom less than 260 days. If the first statement of the time of the crime was correct, it would allow about 240 days from this period. The evidence of other witnesses established the fact that if this crime was committed by the defendant it must have been in the first part of March, and, if so, the period of gestation was about 265 days. It does not appear Fred F. Kanert was convicted of statutory that this girl had any satisfactory means of rape, and brings error. Reversed and re-fixing in her own mind the precise time of the commission of the crime; and the disHarrison & Prince, of Grand Island, for crepancies in her testimony in that regard plaintiff in error. Grant G. Martin and F. are, perhaps, of little importance, except as E. Edgerton, both of Lincoln, for the State. I showing that she was ready to swear posFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes itively to matters of which she had but little knowledge. The principal question as to the sufficiency of the evidence to support the conviction depends upon the corroboration of her testimony. It has been uniformly held that in such prosecutions a conviction cannot be sustained upon the wholly unsupported testimony of the complaining witness. [2, 3] It was shown by a clerk of the defendant that early one morning in the fore part of March the prosecuting witness brought a pair of roller skates to the store, and that he was told by the defendant to oil them for her, which he did. There was, however, no dispute in the evidence that she obtained a pair of skates from the defendant, and this circumstance merely corroborates that fact. It was also shown that the girl was several times at the store; but this was not denied by the defendant. He admits seeing her there at times, and admits that she obtained the skates from him. The erwards the bicycle was returned as unsatisfactory, and the defendant returned $4 of the money; one dollar apparently being retained for injury to or use of the wheel. During all of this time, the $1.25 balance for the skates had been unpaid, and was still unpaid at the time of the trial. defendant forgot, as he says, that circumstance when he returned the $4. Other circumstances disclosed in the cross-examination tend to show that he received no money for the skates, and never expected any. In this respect the girl's story is corroborated. If he gave the skates to the girl, and has failed to explain satisfactorily any motive for so doing, the jury might, perhaps, be justified in considering that the explanation of the complaining witness was more credible. There are other inconsistencies in the evidence of the defendant, and the whole matter must be determined by a jury. We cannot see that the court should have taken this case from them. The defendant was a witness in his own behalf, and denied emphatically and posi- [4] 2. The complaining witness testified to tively ever having had intercourse with her, a repetition of the crime on several differor having taken any liberties with the com- ent occasions. When this evidence was replaining witness. He testified that when ceived, the defendant's counsel asked the she said that she could not buy a pair of court to then instruct the jury that "by the skates at $3.50 he showed her a pair that introduction of plaintiff's evidence the state had been hanging in the show window, and has elected to ask for a conviction upon the offered to sell them to her for $2; that she first act of intercourse, alleged to have ocsaid she did not have that much money, but curred about March 1, or March 5 or 6, had some; and that she was working, and 1911, to wit, the first act of intercourse teswould pay 75 cents on the skates, and the tified to by Mary Waddick," and the court remainder in a week or two. He agreed to answered that the question will stand open that, and told her to get her 75 cents. This until the evidence is received. This ruling was in the afternoon, and a couple of hours was objected to; but we think it was in the later, in the evening, she returned, paid her line of universal practice, and was not ob75 cents, and took the skates. She brought jectionable. The defendant then asked the them in the next morning and had them oil- court "to at this time require the state to ed, as the other witness testified. If the elect upon which of the alleged offenses he evidence of the complaining witness was will ask for a conviction in this case as corroborated, it is, so far as we can see, in shown by the testimony." This request was the cross-examination of the defendant him- also overruled. When the witness was exself. He testified that the skates were pro- cused from the witness stand, the defendant cured from him on the 25th of March, after again moved the court to instruct the jury he returned from Illinois, and to substan- "that the state, by the introduction of its tiate this testimony he offered in evidence a evidence, has elected to ask for a conviction slip of paper on which was written the name upon the first offense testified to by Mary of the complaining witness, the charge of Waddick." To this it appears that no ob$2 for the skates, and the credit of 75 cents, jection was made, and there was no ruling showing a balance due of $1.25, and bearing thereon. When the evidence of the state the date of March 25, 1911. This memoranwas all in, the defendant made the followdum he testified was made at the time of, or ing motion: "The defendant now asks that soon after, the transaction. He was not the state be required to elect on what alcertain whether he or his clerk made it. If leged act of intercourse it will ask for a he falsely dated this memorandum for the conviction, fixing the date of the same." purpose of deceiving the jury, it might dis- The court sustained the motion in the folcredit his testimony in other particulars.lowing order: "Motion sustained, and the He also testified to selling the complaining prosecuting attorney is now required to fix witness a bicycle soon after the sale of the the time of the alleged offense on which he skates. He produced in evidence two sheets asks for a conviction in this case." of paper, which he said were taken from prosecuting attorney elected to ask for a his account book, upon which appeared an conviction "on the first act of intercourse entry of the sale of the bicycle for $5 on the proven, to wit, on or about the 7th day of 16th day of June. In this transaction he March." said the girl's employer was in the store [5] The defendant duly requested the folwith her, and paid the money for her. Aft-lowing instruction: "You are instructed that The guilty may in one sense be technically correct, but, in the connection proposed to be given to the jury, might and probably would be misleading. The request, however, was a suggestion to the court of the necessity of an instruction upon this point; and the eighteenth instruction, given by the court. amounts to a direct refusal to so instruct, and would, if taken literally by the jury, be inconsistent with a proper instruction. We think, therefore, the eighteenth instruction, under the conditions in this case, was prejudicially erroneous. the prosecutor has elected the act which he | ticular act of which the defendant is found claims to have taken place on or about the 7th day of March, A. D. 1911, as the one upon which he will depend for a conviction of the defendant; and you are further instructed that in your consideration of this case your verdict will be for the defendant, unless you find from the evidence, beyond a reasonable doubt, that the defendant committed the act so elected, and as to this act you cannot find the defendant guilty on the evidence of Mary Waddick alone; as to the act she must be corroborated by testimony other than her own." This instruction was refused by the court, and the defendant excepted. The eighteenth instruction, given by the court on its own motion, was as follows: "You are instructed that if you should find from the evidence, beyond a reasonable doubt, that an act of sexual intercourse did take place between the defendant and said Mary Waddick, and that at the time of said intercourse the said Mary Waddick was under the age of 15 years, then you should find the defendant guilty as charged in the indictment" and the defendant excepted. No other instruction was given to the jury by the court as to the election made by the prosecution. The order of the court, made at the close of the evidence requiring the prosecution to elect upon which crime, testified to by the complaining witness, it would rely for a conviction, was correct. The defendant was entitled to this protection. It is true that the time of the commission of the offense is immaterial, providing it is within the statute of limitations, but a defendant cannot be tried and convicted of more than one crime in the same trial; and when several distinct crimes are testified to, and circumstances surrounding each crime are in evidence, so as to identify the several distinct offenses, the state is required to designate the crime for which it will ask a conviction. The Attorney General admits that the order requiring the state to elect was proper and necessary in this case, but insists that those orders, made by the court in the presence of the jury, were sufficient, and that a formal instruction to the jury upon this point in submitting the case was unnecessary. No authorities are cited supporting this suggestion, and we are not aware of any. The jury may or may not heed the orders given to the prosecuting attorney in the progress of the trial. At the close of the evidence, they were instructed by the court as to the matters to be determined by them, and as to the law governing those matters. Erroneous rulings of law made at the trial are frequently corrected by the instructions, and the jury should be governed as to the law of the case by the instructions alone. The instruction asked by the defendant was properly refused. That the prosecuting witness must be corroborated as to the par [6] 3. The complaining witness admitted that she had, some time before the commission of this alleged offense, frequently after night, been in the rooms of one Snyder, and that he had taken undue liberties with her; that the matter had become somewhat notorious, and her brother had interfered to prevent her visiting Snyder's room. She was then asked if Snyder had ever had interthe objection was sustained, on the ground course with her, to which she objected, and that the evidence was incompetent and immaterial. She was under the age of consent, and if the defendant had had intercourse with her, as she testified, it was immaterial whether others had. In this case, however, it was in evidence that she had given birth to a child. The crime, therefore, had been committed, and the question was, Who was guilty? She had already testified that no one but the defendant had ever so used her. If that testimony was true, it was important evidence in the case in fact, conclusive against the defendant-and the defendant should have been allowed to cross-examine her in that regard. [7] 4. After the prosecuting witness had testified that the defendant and no one else was guilty of the crime, she was asked by her attorney: "Did you ever tell your folks anything about this?" She answered: "No, sir." She was then asked: "Well, you did later on, didn't you?" And again: "What do you mean by that answer, Mary?" And she replied: "I didn't until about the middle of September." She was then asked: "And then to whom did you tell it?" This was objected to as an improper question. The objection was overruled, and she said: "I told it to my brother." She further testified that when her condition became known her mother and brother several times asked as to who was to blame, and that she finally told her brother, and then her mother, that it was this defendant. The prosecuting attorney, in his address to the jury, stated: "The parents of the little girl had to tease to get her to tell who this man was." This was objected to, and it is now insisted that it constituted misconduct on the part of the prosecuting attorney. What she told her mother and brother several months after 1 the transaction, as to the guilt of the defendant, was, of course, incompetent. Again, it appears that the defendant's wife had died in Illinois, and was buried on the 25th of September. In cross-examination the prosecuting attorney asked the defendant: "Have you ever been in Illinois since last March?" This was objected to, but the ques tion was allowed, and he answered that he had not. This immaterial evidence was also made the basis of a remark to the jury in the argument of the prosecuting attorney, in which he attempted to infer that one who would not be present at his wife's funeral would be more likely to commit a crime such as that with which the defendant was charged. Without further discussion of this unpleasant matter, we take it for granted that this course of questioning and argument will not be repeated. [8] 5. It is insisted that the sentence (seven years in the penitentiary) was excessive. The crime charged is a serious one. If the defendant is guilty, we cannot see that the court has abused its discretion in fixing the punishment. For the errors indicated, the judgment of the district court is reversed, and the cause remanded. Reversed and remanded. 1. WILLS (§ 597*) CONVEYED. A will devised the use of certain real estate to the widow of the testator during her life, and provided that at her death the land should descend to his three children, naming them, share and share alike, but that, should either of said children die before the death of the widow, the portion that would have gone to such deceased child should descend to her children, share and share alike. Upon the death of the testator the will was admitted to probate. One of the children executed a mortgage on her undivided interest in said property and thereafter died during the lifetime of the widow leaving surviving children. Held that, as against the heirs of the mortgagor, the mortgage created no lien upon the undivided one-third of said land, and was not subject to foreclosure. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1319-1326; Dec. Dig. § 597.*] (Additional Syllabus by Editorial Staff.) 2. WILLS (8 597*) CONSTRUCTION "DE SCEND." for life and providing that at her death it In a will devising land to testator's widow should descend to their children, the word "descend" is used in the sense of "go to" (citing 3 Words and Phrases, 2012-2014). Dig. 88 1319-1326; Dec. Dig. § 597.*] [Ed. Note.-For other cases, see Wills, Cent. Appeal from District Court, Saline County; Hurd, Judge. Action by Susan Case against Edith L. Haggarty and others. From the judgment, defendant Shirley E. Davis appeals. ` Affirmed. lant. Grimm & Grimm, of Wilber, for appelBartos & Bartos, all of Wilber, for appellee. F. W. Bartos, guardian ad litem, and REESE, C. J. This is an action in partition. The owners of the legal title appear to have all been made parties, as well as certain mortgagees. There are two mortgagees, one holding a mortgage on the whole of the land, executed by the ancestor in his lifetime, and over which there is no contention; the other, executed to defendant Shirley E. Davis by one of the three heirs in her lifetime upon the undivided one-third of the land. She died before coming into possession of the estate, and the validity of the mortgage, is contested by her children and heirs. The owner of this mortgage answered setting up his mortgage. A referee was appointed to partition the land. He rewithout loss, when the court directed him to ported that partition could not be made sell the property, which he did, and reported the court found due defendant Davis the accordingly. The sale was confirmed, and sum of $522.75, declared it a lien on the one-third interest of Rose Kline, deceased, the mortgagor, and ordered so much of the proceeds of the sale of the one-third interest paid to the mortgagee. The defendants Zetta Pechota and Burton H. Kline, the children and heirs of Rose Kline, applied for a modification of that part of the decree, which provided for the payment of the Davis mortgage, insisting that it was not a lien upon their one-third interest. They set up a will which had been executed by their grandfather, Henry F. Hill, the father of their mother, Rose Kline, and upon construing the provisions of the will the court held that the mortgagor, Rose Kline, having died during the lifetime of the widow, her mortgage created no lien as against her heirs. The decree was modified accordingly. Davis appeals. [1] Divesting the case of all technical questions as to the procedure, the case must turn upon a construction of the will of Henry F. Hill, the father of the mortgagor, and the grandfather of her two children, who are resisting the foreclosure of the mort gage. There is no question presented as to the bona fides of the mortgage, or any claim that it was not given to secure a just debt. The provisions of the will must be considered. The second, third, and fourth clauses, or paragraphs, are as follows: "(2) I give and bequeath to my beloved wife Hannah C. Hill, in lieu of homestead and dower, the use during her natural life, of the southwest quarter of section 17, of town (ship) 6 north, of range 4 east, Saline county, Nebraska, provided that she shall keep the taxes paid thereon and the interest on the incumbrance that may be thereon at my death. The intention being that this bequest shall release all my other real estate of which I may die seized or possessed of all claims of dower or other interest by my said wife, and that at her death said property shall descend to my heirs share and share alike, that is to say, to my now living children, viz., Susan Case, Beatrice Davidson and Rose Kline shall each be entitled to a one-third interest of said property, but should either of my said daughters die before my said wife then the portion that would have gone to her shall descend to her children share and share alike and should either of my said daughters die without issue then it is my desire that the portion that would have gone to her shall go to the surviving sisters, or their heirs. "(3) I direct that my three daughters above named shall have the east half of the northwest quarter of section 20, in township 6 north, of range 4 east, Saline county, Nebraska, that is to say, the mortgage if any that may be on said premises at my death, shall be first paid from the proceeds of the sale of said premises and the remainder from the sale of said premises shall be divided among my said daughters, share and share alike. "(4) It is my desire that all the rest and residue of my estate of whatever kind or nature, shall be divided equally among my said daughters or their heirs. It being my intention to bestow upon them equally all of my estate whatsoever, real or personal, as soon as practicable after my death, except the use of said southwest quarter of section 17, of town (ship) 6, range 4 east, of Saline county, Nebraska, which my beloved wife Hannah C. Hill shall have during her natural life in lieu of homestead, dower or other interest or claim in my said estate as aforesaid." The will was executed on the 6th day of October, 1899, and the testator died on the 12th day of March, 1902. The will was admitted to probate. The mortgage was executed by Rose Kline and her husband on the 6th day of October, 1906, and she died on the 18th day of October, 1908, leaving no will. Hannah C. Hill, the widow of Henry F. Hill, died intestate on the 2d day of January, 1909. It is insisted that since Hannah C. Hill outlived the daughter and mort gagor, Rose Kline, she, the said Rose Kline, had no such interest in the devised premises as to enable her to create a lien on her undivided interest as against her heirs, and therefore the mortgage is void as to them, while, upon the other hand, it is contended that she held the fee title subject to the "use" during the lifetime of the mother. If the former, the mortgage created no lien. If the latter, it did, and is subject to foreclosure. [2] It will be observed that by the second paragraph of the will the use of the property is devised to the surviving widow during her life upon certain conditions. This conferred a life estate upon the widow, but subject to the conditions named in the proviso. Did it confer more? It is one of the canons of construction that in construing a will the court must resort to the whole thereof and from all its provisions seek to ascertain the intention of the testator and give it effect. In so far as the rights of the widow were concerned, we find no provision which can be construed as vesting the title to the property in her, except to the extent of giving her the use of the land during her life, which implies a life estate. It is provided that at her death the property in dispute shall "descend" to the heirs named, Rose Kline being one, share and share alike. The meaning of the word "descend" does not always refer to the vesting of title. It may refer to the enjoyment of the estate. "The word 'descend,' in a will devising testator's property to certain persons, but, if he left no child or children, then directing that the property was to descend to others, was construed to have been used in the sense of the words 'go to.'" 3 Words and Phrases, 2012, 2013, 2014, and cases there cited. In the sense in which the word is used in the will, this is perhaps the definition to be here applied. Paraphrasing the language of the will to this extent, it reads that at the death of the wife the land "shall go to my heirs, share and share alike, that is to say, to my now living children, viz., Susan Case, Beatrice Davidson, and Rose Kline shall each be entitled to a one-third interest in said property, but should either of my said daughters die before my said wife, then the portion that would have gone to her shall go to her children share and share alike, and should either of my said daughters die without issue then it is my desire that the portion that would have gone to her shall go to the surviving sisters, or their heirs." By the language used, it seems clear that it was the intention of the testator that the fee title should vest in the three living children, only upon the condition that they should outlive their mother, and in case of their not doing so the title should go to their children by force of the will; that whatever interest the daughter would have should terminate at her death if that event occurred before the death of the widow, and |