The opinion of the court was delivered by
Defendants were convicted of forcible rape, and appeal.
The victim was eighteen years old. Deruy was thirty-two years old, and Higgins was twenty-seven years old. Both had сriminal records, and evidently were sexual perverts. When Higgins alone
In thе brief, defendants argue two propositions based on the same premise, that defendants were not represented by qualified counsel. The propositions are stated as fоllows:
“1. The defendants were not represented by counsel qualified to practice law as provided in the constitution of the state of Kansas in the bill of rights, and that the court permitted one not admitted to practice in the supreme court or inferior courts to appear as counsel for the defendants.
“2. That evidence and testimony was permitted to be introduced by the court which substantially prejudiced the rights of these defendants and which, if prоperly objected to by competent counsel, would have been excluded, or which if the court, considering the defendants were represented by one not admitted to the рractice of law should have excluded on his own motion in the protection of the rights оf these defendants.”
The facts are these: At the preliminary examination the defendants wеre represented by an attorney of this state, who at the time of trial had become сounty attorney, and who did not participate in the trial. The trial occupied parts of two days. The record shows that on the first day, when defendants were arraigned and subsequently, they wеre represented by Wayne Phelps, who was a qualified attorney of this state, and by Olin Biggs. The state closed its case at 4:35 o’clock in the afternoon. The opening statement for defendants was made by Biggs, and defendants introduced evidence until 5 p. m., when court adjourned until 9 a. m., the following day. When court reconvened, defendants introduced evidence until 9:45 a. m., when they closed their case. The state introduced rebuttal evidence, the court instructed the jury, the case was argued, and the case was submitted to the jury before noon. Phelps was not рresent the second day.
Biggs was a Missouri lawyer. He was forty-one years old, was admitted to рractice before the supreme court and all inferior courts of the state of Missоuri on July 15,1918, and for many years before trial of this case had been engaged in active practice of law in Missouri. In January, 1935, Biggs made application for admission to practicе in this state. The application was held under advisement
. The trial occurred on June 4 and 5,1935. On June 6, Deruy filed a motion for nеw trial, signed by Robert S. Lemon, an attorney of this state, who represents him here. The tenth ground of the motion was, that Deruy did not have the aid of counsel when arraigned or during the trial. On June 7 Biggs filed a mоtion for new trial on behalf of Higgins, containing thirteen grounds. The thirteenth ground was the same as the tеnth ground of Deruy’s motion. The motions were heard on June 29,1935, after Biggs had been admitted to practice in this state. The record does not show that any evidence was introduced in suppоrt of the motions. The motions were denied, and on the same day, sentence was regularly imposed.
The result of the foregoing is, defendants were, in fact, represented at every stage of the case by attorneys admitted to practice law in this state, except that for a time during the forenoon of June 5 they were represented by Biggs alone. Biggs was a lawyеr of experience, who would have been recognized by the court, on request, for purpose of the trial. The record does not show that any of the evidence of which сomplaint is now made was introduced on the second day of the trial. No complaint is made of the court’s instructions to the jury, and Biggs’ sole fault appears to have been that hе did not make as many objections to the introduction of evidence as Mr. Lemon would have made had he been trying the case. Sometimes it is a part of the strategy of the defense not to make too much fuss about details in the trial of a nasty case.
The evidence admitted without objection will not be reviewed. Defendants suffered no prejudice to their substantial rights, and the judgment of the district court is affirmed.