State v. Atterberry

• Decision Date: 05 March 1898
• Docket Number: 10950
• Citation: 52 P. 451,59 Kan. 237
• Parties: THE STATE OF KANSAS v. ORIN BENJAMIN ATTERBERRY
• Court: Kansas Supreme Court

52 P. 451

59 Kan. 237

THE STATE OF KANSAS v. ORIN BENJAMIN ATTERBERRY

No. 10950

Supreme Court of Kansas

March 5, 1898

Decided January, 1898.

Appeal from Rooks District Court. Chas. W. Smith, Judge.

Judgment affirmed.

I. H Keer, County Attorney, for the State; M. C. Reville, of counsel.

J. R Hamilton and W. B. Ham, for appellant.

OPINION

JOHNSTON, J.

Orin Benjamin Atterberry was charged with obtaining illicit connection, under promise of marriage, with Nancy Elizabeth Paramore, in violation of section 36 of the Crimes Act. The result of the trial was a conviction, and the punishment imposed was imprisonment in the penitentiary at hard labor for a term of four years.

The defendant admitted that he had had illicit intercourse with Nancy, but denied that it was obtained under the promise of marriage. It was sufficiently shown that she was under twenty-one years of age at the time of the alleged intercourse, and there was proof, too, that she was then a woman of good repute. In addition to her own testimony, there was evidence tending to show a subsisting promise of marriage when the alleged offense was committed, and on the whole we think the evidence was sufficient to sustain the verdict of the jury.

The main objections urged against the conviction are based on the charge given to the jury. First, there is a complaint of an instruction as to how the jury might regard the testimony of a witness who had intentionally testified falsely on a material matter in the trial. A single sentence is selected from the instruction which when isolated from the remainder might seem to be objectionable because of the use of an inapt word; but when the whole instruction is read, together with the other portions of the charge bearing upon the same subject, we think the instruction was neither misleading nor prejudicial. Instructions are to be construed as a whole, and an inaccurate expression in one of them is not a ground for reversal where it appears from the entire charge that the jury were not led astray by the inaccuracy.

Complaint is made of the seventh instruction because the jury were told that it was not necessary that the promise of marriage shall have been the sole inducement to the intercourse, nor that the prosecutrix yielded to such intercourse solely because of the promise of marriage. There is no cause, however, to complain of this instruction, because in connection with the statement, and as a part of it, the court told the jury that "it is necessary to prove beyond reasonable doubt that the defendant promised to marry the said Nancy Paramore if she would yield to his solicitations for the intercourse, and that she yielded because...