In re Application of Tade McClane for Writ of Habeas Corpus

• Decision Date: 08 February 1930
• Docket Number: 29,094
• Citation: 129 Kan. 739,284 P. 365
• Parties: In re Application of TADE MCCLANE for Writ of Habeas Corpus
• Court: Kansas Supreme Court

284 P. 365

129 Kan. 739

In re Application of TADE MCCLANE for Writ of Habeas Corpus

No. 29,094

Supreme Court of Kansas

February 8, 1930

Decided January, 1930.

Original proceeding in habeas corpus.

Writ denied.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAPE--Attempt to Commit Statutory Rape--Information. An information which charges the crime of an attempt to commit rape on a female under the age of eighteen years, which sets out the facts of the alleged offense in detail, but contains no allegations of an assault or an assault with intent to commit the crime of rape, does not contain therein either of the additional charges of simple assault, or an assault with intent to commit the crime of rape.

2. PARDONS AND PAROLES--Effect of Parole by Court--Suspending Execution. The granting of a parole by the trial court on the request of the defendant after rendering judgment on the verdict of guilty and sentencing him to confinement in the industrial reformatory does not vacate or set aside the sentence already imposed, but simply suspends the execution of the punishment.

3. SAME--Parole by Court--Acceptance of Conditions Bars Complaint Thereof. Where a defendant requests a parole after sentence and accepts the conditions thereof imposed by the trial court he cannot, after violation thereof, be heard to complain of its conditions or have the time counted on that of the original sentence.

4. SAME--Parole by Court--Violation of Conditions--Effect of Revocation of Parole. When the conditions or restrictions of a parole, granted by the district court, have been violated and the court revokes the parole, the temporary suspension of the original sentence is ended and it immediately becomes effective and in operation, without any other action than the order of revocation.

F. J. Oyler and G. R. Gard, both of Iola, for the petitioner.

William A. Smith, attorney-general, and Walter T. Griffin, assistant attorney-general, for the respondent.

OPINION

HUTCHISON, J.

The petitioner in this case applies to this court for a writ of habeas corpus, claiming to be illegally restrained of his liberty by the superintendent of the industrial reformatory at Hutchinson, Kan., where he has been committed to serve a sentence for the conviction in Neosho county of the crime of an attempt to commit rape. Three grounds are urged by the petitioner in support of his right to complete discharge: First, the information charged the offense of assault with intent to commit rape as well as simple assault, for which the punishment would be a jail sentence; second, the petitioner has already served the full jail sentence of six months in the county jail of Neosho county; and third, the commitment to the industrial reformatory is void and of no effect.

The information is set out in the abstract, and instead of it containing any words or terms indicating an assault, the details set out quite conclusively show the lack of anything that could be likened to an assault. Before an assault can be said to be included in the crime of an attempt to commit rape, the information must contain a charge of that kind or character. The information in this case not only fails to charge an assault, but the very nature of the offense under our statutes negatives its existence. It was said in the case of State v. Russell, 64 Kan. 798, 68 P. 615, in distinguishing between an attempt to commit rape on a female under the age of eighteen years and an assault with intent to commit the crime of rape, that the element of force in each case was by virtue of the statute eliminated. Force or assault of any kind is not an element of the crime of an attempt to commit statutory rape. These offenses involve separate and distinct elements and therefore require separate and distinct allegations. (State v. Custer, 85 Kan. 445, 116 P. 507; State v. Guthridge, 88 Kan. 846, 129 P. 1143; In re Stahlnaker, 93 Kan. 622, 144 P. 832.)

As second and third grounds for the writ it is claimed the petitioner has already served his jail sentence of six months, appropriate for assault with intent to commit rape and the commitment to the reformatory thereafter is void and of no effect. The confusion in the record which furnishes the petitioner the ground for his contention occurs after the petitioner had been regularly tried and found guilty of an attempt to commit rape on a female under eighteen years of age, had been regularly sentenced to the industrial reformatory and on his own request had been granted a parole by the district court in which he was convicted and sentenced. One of the conditions or restrictions imposed...