State v. Otey
7 Kan. 69
Kan.
1871
Check Treatment

The opinion of the court was delivered by

Valentine, J.:

The defendant was charged in the court below with the commission of an assault and a rape upon a female child under the age of ten years. He was tried by a jury who found the following verdict: “We “ the jury find the defendant guilty of an attempt to com- “ mit a rape upon the person of Anna M-- B-•, “ mentioned in the information.” The defendant moved for a new trial, and in arrest of judgment, both of which motions were denied by the court, and he was sentenced to ten years imprisonment in the penitentiary. From this-sentence and the judgment of the court below the defendant appeals.

1. Evidence: examination, During the trial, Nancy J. B., the mother of the prosecuting -witness was examined on the part of the prosecution. During her direct examination she-testified among other things as follows:

*76“ Question: After this transaction (the alleged rape) was the girl affected with any disease ? and had she any discharge of a private nature from her person ? This question was objected to by the defendant as incompetent and immaterial; but the court overruled the objection, whereupon the defendant duly excepted. Answer: She was.”
“ Question : State if after this transaction you observed any discharge ? what was the color, and from whence did it proceed ? This question was objected to by the defendant as irrelevant, incompetent, and immaterial, but the court overruled the objection, whereupon the defendant duly excepted. Answer: There was a discharge of blood upon the underclothing. ' After this I observed other discharges. Ten or twrnlve days later I noticed a white and green discharge. The first was sort o’ mixed with blood; and after that it was green and white. I called Doct. T--the fore part of June; and afterwards Doct. Y-was called; Doct. Y. was called about the 6th of June; afterwards, about the 12th of June, Doct. P- was called. Y-, T-, and P-treated her.” The witness also testified that she found medicines, a brush and a syringe in the defendant’s trunk.
“ On cross-examination the defendant’s counsel asked the witness the following questions: State if prior to this occurrence the girl Anna M-B-had suffered from any private disease ? This question was objected to as not proper matter of cross-examination, and the objection was sustained and the evidence excluded, whereupon the defendant excepted.”

The physicians testified that the disease that the prosecuting witness, Anna M-B-, had was gonorrhea. 'The physician, P. Morse, testified that he treated the defendant for gonorrhea in April, 1870. The evidence shows that the alleged offense, if committed at all, was ■committed in May, 1870. The evidence also tended to show that brushes and syringes, such as were found in 'the defendant’s trunk, are sometimes used in the treatment of gonorrhea.

*77The said evidence of Nancy J-B-was undoubtedly introduced by the prosecution upon the theory that the girl Anna M. B. was afflicted with gonorrhea which she had contracted from the defendant at the time of the alleged rape; for upon no other theory could the evidence be competent. In proof of this theory Nancy (the mother,) testified that after said alleged rape the girl had a disease of a private nature; and the defendant by cross-examination desired to show that the girl also had the said disease before that time. "W e know of no reason why he should not have been allowed to show it. No question was raised in the court below, and none has been raised here, as to whether the defendant had waived his right to cross-examine upon this matter, and there is nothing in the record that shows that he had waived such right. It was claimed by the prosecution in the court below, and was so decided there, that the matter about which the defendant asked the question, was “not proper matter of cross-examination.” We think that the court erred. The witness had testified concerning the disease; and the defendant had a right to know by cross-examination token the disease originated.' If it was contracted before the alleged ape, it certainly was no evidence against the defendant. If the girl had gonorrhea at any time, it was very material to know when she contracted it.

2_oross “nirSido No valid objection can be urged to the form of the question as the defendant’s counsel put it. It is true that the question does not refer in explicit language to the disease that the witness had already testified, about; but such is not necessary in-cross-examination. Wide latitude should be allowed in cross-examination in any case, and particularly so in a-case of this kind, where sufficient facts had already ap~ *78peared to show that the character of the witness was not of the best kind. We also think that any question on cross-examination of the girl’s mother that would have elicited evidence tending to show that the girl contracted the disease from the witness herself, while sleeping with said witness, would have been a proper question.

3. information •. wái?er.aut) We think there is enough in the record to show that, the information was filed and prosecuted by proper authority. The defendant waived the supposed irregularity in the verification by pleading to the merits, and not moving to quash, nor pleading in abatement.

We are not able to say that the charge of the court to the jury is sufficiently erroneous to warrant a reversal of the case for that reason. The principal objection that might be urged against it is that a very large portion of it is irrelevant, having no application to this case.

4. verdict: form ctnlhat'8uffl We think the form of the verdict is sufficient. It is not necessary that the verdict should state that the defendant did some act toward the commission of the offense. We should judge from the preliminary examination by the judge of the court and the testimony of the witness Anna M. B., (taking all together,) that she was a competent witness.

The judgment of the court below is reversed and a new trial ordered.

All the Justices concurring.