The opinion of the court was delivered by
Ed Buckle appeals from a conviction upon a charge of rape committed upon his stepdaughter, who reached the age of fifteen years August 20, 1922. She will be spoken of as the complaining witness, although her mother swore to the complaint. She gave birth'to a normal child May 15, 1922. She testified that the defendant had had intercourse with her just before she was thirteen and frequently afterwards.
1. After the jury was sworn the county attorney asked and was given leave to indorse the names of three additional witnesses upon the information, over the objection of the defendant, and complaint is made of this ruling. The trial court stated at the time that opportunity would then be given to examine the new witnesses if desired by counsel for the defendant, who replied that it was too late to attempt it. It does not appear that the delay in indorsing the names was intended to prejudice the defendant or that it actually did so, and it is therefore not a ground of reversal.
2. The matron of the maternity home in which the child was born was a witness to the fact and-date of its birth. She held it in
3. The ruling principally relied on by the defendant is the refusal to grant a new trial on the ground of newly discovered evidence tending to show that the complaining witness had testified falsely concerning her relations with a number of men and boys. On cross-examination she said that while living at Florence she never went out of town with any boys; that she never went riding with a certain jitney driver at Florence, although he took her mother and herself to the train when they went to the harvest fields — that she never went anywhere at night with him; that she never had any sweethearts; that she never went driving with a specified boy —a schoolmate, sixteen to eighteen years old, although he had a Ford. She was asked whether while out in Ford county, near Dodge City, she had had intercourse with anyone except the defendant, and answered that she had not. She was not asked whether she had at any time had intercourse with anyone else.
The affidavits setting .out the newly discovered evidence included statements to this effect: On one occasion the jitney driver referred to had been seen in front of a drug store talking to the complaining witness, who was standing near his Dodge car. She had been seen one afternoon in the front seat of a car with the jitney driver, a man and woman being in the rear seat. (For anything shown in the abstract this may have been the time when, according to her
This newly discovered evidence has no substantial tendency to show either profligate conduct or willful perjury on the part of the fifteen-year-old complaining witness. Her testimony that she never had any sweethearts cannot fairly be regarded as denying such association with boys or young men as the affidavits set out. The contradiction undertaken to be shown with reference to particular individuals is not sufficiently direct or specific to have much value by way of impeachment. Moreover, the evidence offered, except that regarding statements made since the conviction, are unavailable, irrespective of their substance, because no attempt was made to show that it could not with reasonable diligence have been procured in time for use at the trial. That is essential in criminal
The result of the trial depended on whether credence was given on the one hand to the testimony of the complaining witness (corroborated to a considerable extent by her mother) or on the other to that of the defendant. What she is reported to have said after the verdict tends to show ill feeling toward the defendant — a desire' to see him punished — so that it is pertinent to the issue. It also suggests, though rather remotely, the question of some one else having been the father of the child. But we cannot regard it, alone or in connection with the other affidavits, as calling for a reversal of the ruling on the motion for a new trial.
The judgment is affirmed.