State v. Harris

101 Kan. 187 | Kan. | 1917

The opinion of the court was delivered by

West, J.:

The defendant was charged with statutory rape on a girl twelve years old. He was convicted of an attempt to commit the offense, and appeals, assigning as errors the rejection of certain evidence, giving and refusing certain instructions, and the denial of a new trial.

The girl testified to the completed offense, and told of certain laceration. Her mother testified to the latter and to blood stains on clothing which was burned. Under the rule already declared by this court, a conviction for an attempt — not assault with intent to commit — could be had under the charge of the full offense without the allegation of any specific act toward its commission. (In re Lloyd, Petitioner, 51 Kan. 501, 33 Pac. 307, and The State v. Guthridge, 88 Kan. 846, 120 Pac. 1143.)

Attention is called to The State v. Mitchell, 54 Kan. 516, 38 Pac. 810. But there the girl was of age and told a preposterous story, entirely uncorroborated, and it was held that a conviction for an attempt only would not be permitted to stand. Here, the story, while remarkable, was not impossible, and there was corroboration, which things, added to the tender age of the child, take this out of the rule of the Mitchell case.

Medical evidence as to the. possibility that the injury was self-inflicted or accidental and as to the possibility of distinguishing between different kinds of blood stáin was rejected, but without error because the one, if expert at all was merely argumentative, and the other was immaterial, as the stained clothing had- not been preserved and no attempt to describe it was made.

To establish the theory that the defendant’s wife had conspired with her sister-in-law, the girl’s mother, to get rid of the husband so that the two women could associate with certain Mexicans, the defendant offered to show by the city marshal that the two associated together and visited certain Mexican quarters and were visited by the Mexicans, and that the defendant’s wife ran away with one of them just before the trial. The girl’s mother testified that her sister-in-law was at her house sick when the offense occurred, and that the defendant ate supper there. The defendant was not permitted to testify that his wife went away with a Mexican. The rejected evidence was not only calculated to bring in a collateral issue, but even if admitted would not have tended materially to show that the girl’s father, who swore to the complaint, was induced or inspired thereunto by his wife thróugh the instigation of the defendant’s wife, and even if he were the defendant’s guilt or innocence would not thereby be established or affected — merely the credibility of the wife, who was not a witness, and the mother, whose impeachment was not attempted.

It was not necessary to instruct concerning an overt act toward the commission of the full offense more definitely than was done. The charge given fairly and correctly gave the law of the case.

The judgment is affirmed.