State v. Woods, 49 Kan. 237

49 Kan. 237 | Kan. | 1892

The opinion of the court was delivered by

Horton, C. J.:

This was a prosecution against John Woods, under §31 of the crimes act, for carnally and unlawfully knowing one Malvina Martin, a female under the age of 18 years. The defendant was convicted, and sentenced to confinement at hard labor in the penitentiary of the state for the term of five years. He appeals to this court.

I. It is contended that the trial court erred in requiring the defendant to plead to the information filed against him, because he had had no preliminary examination. This question is not properly here for our consideration, because no plea in abatement was filed. (The State v. Barnett, 3 Kas. 244; The State v. Finley, 6 id. 366; The State v. Bailey, 32 id. 83.) It appears, however, from the record that at the time the information was filed the defendant was a fugitive from justice; therefore no preliminary examination was necessary. (Crim. Proc., § 69.)

II. It is next contended that the information did not charge any public offense. The words “with the consent” are included in the information, but they may be treated as surplusage. As Malvina Martin was under the age of 18 year's, it is immaterial whether she consented or not. The offense charged .is as complete if committed with her consent as without her consent. (The State v. White, 44 Kas. 520.)

III. It is further contended, that the trial court erred in allowing oral testimony to be offered as to the age of Malvina Martin. It appears from the record that her father, Elmore Martin, her mother, Minerva Martin, her sister, Elizabeth Martin, and her brother, Louis Martin, testified that Malvina, was under 16 years of age at the time of the alleged offense. This evidence' was competent, notwithstanding the record of the birth of Malvina in the family Bible.

“ While parol proof of a producible written instrument cannot be received, yet where the parol evidence is as near to the thing testified to as the written, then each is primary. Thus, the date of A.’s birth is registered by one of his parents; this is primary evidence. But the testimony of a relative cognizant of Afs birth is also primary evidence of its date. Marriage, as will hereafter be abundantly shown, may be proved by parol, though there be a written contract and a registry.” (Whar. Ev., §77.)

IV. It is again contended that the trial court committed error in withdrawing from the consideration of the jury the annual reports of the clerk of school district No. 11. These reports commenced with the year 1886, and closed with 1891, giving the names of the children, male and female, in the school district where Malvina Martin resided, including her name, and the age of each child. It was claimed that these reports were competent as tending to show that Malvina was over the age of 18 years when the alleged offense was committed. We do not think the court committed any error in instructing the jury not to regard the reports in considering the guilt or innocence of the defendant. The clerk of each school district of the state is required to make each year a written report of the number of children, male and female, residing in his district over the age of five and under the age of 21 years, but he is not required to include in his report the names of the children, or the actual age of any child. (¶ 5599, Gen. Stat. of 1889. See, also, ¶ 5564, Gen. Stat. of 1889.) The annual reports, not being required by the statute to show the age of the children of the district, were not admissible, and, having been improperly admitted, were properly withdrawn.

V. It is finally contended that the motion for a new trial, ought to have been granted, because of the misconduct on the part of the jury. It is shown by one of the witnesses that, after the jury retired to consider of their verdict, the question of the guilt or innocence of the defendant was discussed about 15 minutes, then a ballot was taken, and the jury voted nine for guilty and three for acquittal. After the second ballot, and while the jury were consulting concerning the age of Malvina Martin, one of the jurors, Grant Hanford, ‘feaid, “she might be 25 years old.” Another juror, Mr. Gibbons, said, “he knew she was not that old, because it was only two or three years, or a few years, since she wore short dresses.” Mr. Fletcher, another juror, then said, “If that’s the fact, we will vote for conviction.” Fletcher and Hanford were two of the jurors who voted for acquittal upon the two ballots taken before this statement was made. Another ballot was then taken, and the jury voted unanimously “guilty.” Another witness testified that, after the jury had taken two ballots, the juror Gibbons said, “that about three years ago, Malvina was a little girl in short dresses; that he saw her at a baptism.” Another witness testified that the juror Gibbons said, in the jury-room, concerning Malvina, “that three years ago she was a small girl, wearing short clothes.” Upon the part of the state, an attempt was made to show by the jurors that the statements of Gibbons did not in the least degree influence them in assenting to the verdict; but this was not successful. Crandall, a juror, testified, “I don’t know as it had any material influence — no, only indirectly.” Fletcher, another juror, testified, “that the statement might have had some little influence.” We think, under the authority of Railroad Co. v. Bayes, 42 Kas. 609, that the statement of the juror Gibbons may have improperly influenced the verdict. (See, also, Perry v. Bailey, 42 Kas. 539.) The defendant is charged with a felony. The penalty prescribed is a severer one than has ever before been provided for in any state or country for such an offense. (The State v. White, 44 Kas. 514.) The misconduct, under the circumstances, is sufficient to require the granting of a new trial.

There are some other alleged errors discussed in the briefs, but it is not necessary to refer to them at length, because they are not likely to occur upon another trial.

The judgment of the district court will be reversed, and the cause remanded.

All the Justices concurring.