State v. Bisagno
| Decision Date | 12 June 1926 |
| Docket Number | 26,298 |
| Citation | 246 P. 1001,121 Kan. 186 |
| Parties | THE STATE OF KANSAS, Appellee, v. NELSON BISAGNO, Appellant |
| Court | Kansas Supreme Court |
Decided January, 1926.
Appeal from Greenwood district court; ALLISON T. AYRES, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. CONTINUANCE -- Indorsement of Witnesses on Information -- Discretion of Court. The defendant, charged with the offense of statutory rape, asked a continuance of the trial over the term because the names of three witnesses had just been indorsed on the information by the state. The trial was postponed four days, but a continuance to the next term of court was denied. Held, that the ruling was not an abuse of the discretion vested in the court.
2. RAPE--Proof of Date--Instructions. There was no error in the giving of an instruction that it was not necessary for the state to prove the exact date upon which the offense was committed, if one was committed, but was sufficient if the state had shown beyond a reasonable doubt that the offense charged was committed on or about the date alleged and within two years next preceding the commencement of the prosecution.
3. SAME--Evidence--Proof of Other Acts. In a prosecution for statutory rape, evidence of other acts of sexual intercourse near the same time may be admitted to show the lustful disposition of defendant, in corroboration of other testimony of the prosecution.
4. CRIMINAL LAW -- Trial -- Withdrawal of Improper Testimony. The withdrawal by the court of testimony improperly admitted accompanied by an admonition that the jury must disregard it will ordinarily cure any error in its admission.
G. H Lamb, of Yates Center, and Robert H. Clogston, of Eureka, for the appellant.
Charles B. Griffith, attorney-general, Roland Boynton, assistant attorney-general, and J. F. Darby, county attorney, for the appellee; S. F. Wicker and Gordon A. Badger, both of Eureka, of counsel.
Nelson Bisagno was convicted of carnally knowing Wilma Holderman, a female child of the age of fifteen years, and appeals.
He assigns errors on rulings denying a motion for a continuance, the admission of certain evidence, the giving of certain instructions, and the denial of his motion for a new trial. The case was assigned for trial on January 21, 1925, and on the nineteenth of that month he moved for a continuance to the succeeding term of court, for the reasons that the state had indorsed the names of three additional witnesses upon the information, one of whom was Thelma Hoggatt, and that his counsel had not proper opportunity to inquire as to the added witnesses and the materiality and importance of their testimony. He alleged that he had been arrested on January 21 upon a charge of statutory rape on Thelma Hoggatt, one of the added witnesses, and that the preliminary hearing on that charge had been set for January 23, and that he could not safely proceed to trial on the Holderman charge until the next term of court. While the court declined to continue the case over the term, the trial was postponed to January 25. The reassignment of the case to the later date gave defendant a fair opportunity to investigate the added witnesses. Under the circumstances the time to which the case should be continued was largely a matter for the discretion of the court. Defendant was not entitled to a continuance over the term as a matter of right, and by reason of the postponement he was enabled to make an investigation as to the new witnesses. It was held in a homicide case that:
"A continuance is not ordinarily demandable as a matter of right because the names of witnesses are indorsed on the information at the commencement of a trial."
It appears that his rights in this regard were protected, and certainly the refusal of a further continuance cannot be regarded as an abuse of the discretion vested in the court.
Error is assigned upon an instruction that:
"It is not necessary for the state to prove the exact date upon which the offense was committed, if an offense was committed, but it is sufficient if the state has shown beyond a reasonable doubt that the offense charged was committed on or about the date alleged and within two years next preceding the commencement of this prosecution."
It is insisted that as the date of the offense was stated in the information, it was error to instruct that evidence of the commission of the offense at another or a later time might be considered. The matter of time was not material except to confine the proof to the commission of the offense within the period of time fixed by statute. (R. S. 62-1006; State v Barnett, 3 Kan. 250; State v. Harp, 31 Kan. 496, 3 P. 432; State v. Brooks, 33 Kan. 708, 7 P....
To continue reading
Request your trial
-
State v. Boysaw
...of this class, proof of other acts of intercourse may be received to show the lustful disposition of the defendant.” State v. Bisagno, 121 Kan. 186, 188, 246 P. 1001 (1926). The Kansas Supreme Court continued to apply the lustful disposition exception through the 1940s and 1950s. In State v......
-
State v. Sauter, 9012
...55 Ariz. 13, 97 P.2d 543; State v. Jenks, 126 Kan. 493, 268 P. 850, citing State v. Stitz, 111 Kan. 275, 206 P. 910 and State v. Bisagno, 121 Kan. 186, 246 P. 1001; People v. Cosby, 137 Cal.App. 332, 31 P.2d 218; People v. Cassandras, 83 Cal.App.2d 272, 188 P.2d 546; State v. Shtemme, 133 M......
-
City of Wichita v. Hibbs
... ... appellant when he, without objection, gave bond for his ... appearance in court. See, State v. Dye, 148 Kan ... 421, 429, 83 P.2d 113; State v. Toelkes, 139 Kan ... 682, 685, 33 P.2d 317; State ex rel. v. Strevey, 138 ... Kan. 646, 648, ... such evidence resulted in prejudice to the substantial rights ... of the defendant. See, State v. Bisagno, 121 Kan ... 186, 246 P. 1001 and State v. Williams, 126 Kan ... 375, 267 P. 1095 ... Appellant ... complains of the conduct of the ... ...
-
State v. Beam
...appear the temporary reception of such evidence resulted in prejudice to the substantial rights of the defendant. See, State v. Bisagno, 121 Kan. 186, 246 P. 1001, and State v. Williams, 126 Kan. 375, 267 P. 1095.' 158 Kan. at page 189, 146 P.2d at page Other grounds of error relied on rela......