54 Kan. 719 | Kan. | 1895
The opinion of the court was delivered by
The defendant was charged with the crime of rape, and a second count was added to the original information, defectively charging an attempt to commit a rape. Two verdicls were returned by the jury, one acquitting on the first count, and the other convicting on the second. From this conviction the defendant appealed to this court, and the judgment was reversed for the insufficiency of the second count of the information, on which the conviction was based. (The State v. Frazier, 53 Kas. 87.)
A plea in abatement was also filed, alleging that the defendant had never had a preliminary examination. To this also, a demurrer was filed, and sustained. The defendant, having been once tried for this same offense, cannot now for the first time complain of the want of a preliminary examination.
At the trial, the defendant challenged the array of jurors, on the ground that the jury was not made up as required by law, because no list of names had been returned from the city of Salina, and therefore no jurors were drawn from Salina. It was shown that no list of names for jurors was filed with the county clerk, and consequently none were in attendance from the city. In the case of The State v. Jenkins, 32 Kas. 477, it was said:
“ We think the better rule, and the one most likely to do justice, is, that while mere irregularities in the drawing of jurors, or mere informalities on the part of the officers charged with the drawing, ought not to be a sufficient ground for sustaining a challenge to an array, yet it is otherwise where the*722 essential provisions of the statute have been palpably disregarded.”
The defendant moved to quash the amended information, for the reason that it does not state facts sufficient to constitute a public offense. The prosecution is based on § 31 of chapter 31 of the General Statutes of 1889, which reads as follows:
“Every person who shall be convicted of rape, either by carnally and unlawfully knowing any female under the age of 18 years, or by forcibly ravishing any wompp of the age of 18 years or upwards, shall be punished by confinement and hard labor not less than five years nor more than 21 years.”
It is insisted by counsel for the appellant, with much earnestness and ingenuity, that the act of the defendant must be
“By the laws of this state, a female under the age of 18 years is incapable of giving consent to any act of sexual intercourse, so that every act of sexual intercourse with such female constitutes the crime of rape, whether .with or without the consent of such female, unless the parties are married.”
Complaint is also made of the refusal of the court to instruct the jury that, if they should find that the defendant actually consummated the offense, they could not convict of the attempt. Section 418 of the crimes act provides:
“No person shall be convicted of an assault with intent to commit a crime, or of any other attempt to commit any offense, when it shall appear that the crime intended or the offense attempted was perpetrated by such person at the time of such assault, or in pursuance of such attempt.”
It is provided in §213 of the code of criminal procedure that “proof of actual penetration into the body shall be sufficient proof to sustain an indictment or information for rape.” The prosecuting witness was a girl 13 years of age. Her testimony is not clear to the fact that there was any penetration, and shows it to have been very slight, if at all. The jury were instructed that the word “attempt” means “an effort or endeavor, an act tending towards the accomplishment of a purpose, which exceeds a mere intent or design, and falls short of an execution of it.” “ The words ‘sexual intercourse’ mean the actual contact of the sexual organs of a mau aud a woman, and an actual penetration into the body of the latter.” The defendant is an old man. That he attempted to violate the person of this little girl appears perfectly clear from the evidence, and he has been convicted by two juries. It is at least doubtful whether the evidence of the prosecutrix would be sufficient to uphold a conviction for rape. Where the correctness of the verdict is so manifest, we should hesitate to require another trial, unless there were satisfactory reasons for. doing so. We do not think the defendant has been deprived of any substantial right, or convicted of a crime greater or less than he is guilty of. The judgment is therefore affirmed.