55 Kan. 766 | Kan. | 1895
The opinion of the court was delivered by
Newman Brown was convicted upon a charge of rape, and sentenced to confinement at hard labor in the penitentiary for a term of 15 years. The offense was alleged to have been committed at Dodge City, upon the person of Sophronia M. Lewel-len, who, with her husband, was traveling through the state from Colorado to Oklahoma. She stated that, on the evening of her arrival at Dodge City, she met the defendant, who compelled her and her husband to accompany him to a room in another part of the city, and that, after driving her husband out of the room, the defendant compelled her to submit to his embraces. Upon the trial the defendant admitted that he had sexual intercourse with Mrs. .Lewellen, but contended that it was with her consent and at her
A question is raised as to the diligence of the defendant, and it is said that he might have begun the taking of the depositions at an earlier date. If they had been taken and transcribed in the usual way, they probably would have been received in good time ; but to accommodate the state and the defendant, shorthand notes of the testimony were taken, and by agree
It is argued that the defendant was in fault because he did not ask for a continuance before the trial was begun. Such an application at that time would hardly have been received with much favor. The testimony had been taken in the presence of counsel for the state, and a message had been received that the depositions were then on the way, and all expected that they would be received within-a day or two. The judge, expecting that they would come to hand before the state would rest its case, directed the trial to proceed. If the depositions were unfit for use as testimony, the subsequent application should have been allowed. The testimony having been taken in the presence of counsel for both parties, the errors could have been readily corrected ; and if a statement of the testimony had been reduced to writing, it is probable that the state would have admitted the same as the depositions of the witnesses, and ho delay of the trial would have been occasioned. The defendant, however, was refused an opportunity to file an affidavit as to diligence, the materiality and importance of the testimony, or to make any showing for a postponement of the case until the depositions could be properly transcribed or retaken. We think the defendant was entitled to an opportunity to. produce this testimony, and that the rulings of the court with respect thereto were erroneous.
The other objections to rulings upon the testimony are not deemed to be material, but for the errors which have been mentioned the judgment must be reversed, and the cause remanded for a new trial.