State v. Allen

• Citation: 183 P.2d 458,163 Kan. 374
• Decision Date: 12 July 1947
• Docket Number: 36702.
• Parties: STATE v. ALLEN.
• Court: United States State Supreme Court of Kansas

183 P.2d 458

163 Kan. 374

STATE v. ALLEN.

No. 36702.

Supreme Court of Kansas

July 12, 1947

Rehearing Denied Sept. 15, 1947.

Appeal from District Court, Sedgwick County, Division No. 1; Ross McCormick, Judge.

George Allen, alias Jerry Allen, was convicted of an attempt to commit rape, and he appeals.

Syllabus by the Court

1. In a prosecution for rape under G.S.1935, 21-424, a defendant may be convicted, under proper instructions, of an attempt to commit rape.

2. Where a defendant, after the state rests its case in chief consents to the request of the state to amend the information so as to charge only an attempt to commit rape, the defendant cannot obtain a reversal of the judgment of conviction by reason of G.S.1935, 62-808, which prohibits the amending of an information as to substance after the defendant pleads.

3. Whether the victim in a rape case acquiesced in defendant's attempt to have sexual intercourse or whether force was employed by the defendant in an attempt to obtain it are questions of fact for the determination of the jury where there is competent evidence on the subject.

4. Evidence introduced by the state of other similar offenses by defendant was competent as tending to show his lustful disposition and to corroborate other testimony of the prosecution.

5. Other complaints treated in the opinion and held, they do not permit a reversal of the judgment in view of the legislative mandate (G.S.1935, 62-1718) which directs this court to give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.

Hal C Davis, of Topeka, for appellant.

Paul V Smith, Deputy Co. Atty., of Wichita (Edward F. Arn, Atty. Gen., H. R. Fatzer, Asst. Atty. Gen., and Harold H. Malone, Co. Atty., of Wichita, on the brief), for appellee.

WEDELL Justice.

Defendant was convicted of an attempt to commit rape and has appealed.

Appellant asserts the trial court erred in permitting the state to amend the information after the state rested. The information was drawn pursuant to the provisions of G.S.1935, 21-424, and charged appellant with the commission of the offense of forcible rape. At the conclusion of the state's evidence in chief, counsel for appellant moved for a directed verdict on the ground the evidence showed the offense of rape had not been committed. The state conceded the evidence failed to prove the charge of actual rape but contended it did establish an attempt to commit rape and asked leave to amend the information accordingly.

Appellant contends that under the provisions of G.S.1935, 62-808, an information cannot be amended as to substance after jeopardy attaches. He urges no new issues can be introduced and tried thereafter, citing State v. Bundy, 71 Kan. 779, 81 P. 459. That such is the general rule cannot be doubted. However, appellant's interpretation of the opinion in the Bundy case with respect to the precise point urged in the instant case is not accurate. The pertinent quotation from that opinion reads:

'After the trial has begun and jeopardy has attached, the defendant has a right to insist that the case shall proceed to a final result, and, if he cannot be convicted upon the information as it stands when the trial commences, he is ordinarily entitled to an acquittal.' 71 Kan. page 782, 81 P. 459, 460.

In the instant case, appellant's counsel did not insist upon trial on the original information but expressly consented to the amendment which charged only an attempt to commit rape by means of force. Moreover, under our practice a defendant may be found guilty, under proper instructions, of an attempt to commit rape under an information which charges actual rape. G.S.1935, 21-101, 62-1022; State v. Cross, 144 Kan. 368, 59 P.2d 35; State v. Griffin, 161 Kan. 90, 91, 166 P.2d 580, and cases therein cited.

Appellant argues the evidence failed to disclose force was employed. It will serve no useful purpose to narrate the detailed facts of the episode. It may be conceded, as contended by appellant, the episode started in what appellant has seen fit to denominate a mutually desirable 'petting party.' It also frankly should be stated the woman admitted that at one time during the episode she contemplated sexual intercourse. The trouble is, the evidence also discloses that it ceased to be a mutually desirable affair, the woman resisted and thereafter appellant resorted to force. The reason, or reasons, for her change of mind are not controlling. The fact she did change her mind, so advised appellant, and thereafter resisted his efforts is controlling. There was ample evidence on the subject of force to make that distinctly a jury question. In State v. Moore, 110 Kan. 732, 205 P. 644, it was held:

'To commit the offense of an attempt to ravish and carnally know a woman against her will, it is not necessary that the force used be reasonably calculated to overcome resistance, nor that it be intended to use force sufficient to overcome all resistance.' Syl. ¶6.

And in the opinion it was said:

'The law should not closely measure the extent of her resistance, nor closely measure her efforts to alarm others. So long as she is an unwilling victim, and so long as the man resorts to any force to have intercourse with her, the man must bear the consequences of his criminal act.' 110 Kan. page 734, 205 P. 644, 645.

It is urged the court erred in admitting evidence of two similar previous attempts by appellant within the last year to force other women to have intercourse with him. Whatever the rule may be elsewhere it is no longer open to dispute in this jurisdiction that this evidence was admissible. In State v. Stitz, 111 Kan. 275, 276, 206 P. 910, 911, it was said:

'While the general rule is that one crime cannot be established by proof of other independent crimes, there are well recognized exceptions to the rule, and one of them is that in sexual offenses proof of prior and subsequent acts of intercourse are admissible to show the lustful disposition, the existence and continuance of the illicit relation, as these tend to explain the act charged and corroborate other testimony of the prosecution. The exception has been so frequently and thoroughly considered that there is no occasion for further consideration or comment.'

See, also, State v. Bisagno, 121 Kan. 186, 246 P. 1001; State v. Jenks, 126 Kan. 493, 268 P. 850; State v. Funk, 154 Kan. 300, 118 P.2d 562.

Appellant complains with respect to the instructions given. They have been carefully examined and reversible error does not appear. It is true that instructions might frequently be more artistically framed or more clearly stated. But when...