State v. Borchert
| Decision Date | 09 January 1904 |
| Docket Number | 13,702 |
| Citation | 68 Kan. 360,74 P. 1108 |
| Parties | THE STATE OF KANSAS v. ROBERT BORCHERT |
| Court | Kansas Supreme Court |
Decided January, 1904.
Appeal from Reno district court; M. P. SIMPSON, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. STATUTORY RAPE--Evidence of Similar Acts Admissible. In a prosecution upon a charge of statutory rape, where it is claimed that the act relied on for conviction was a part of a course of illicit sexual commerce between the defendant and the complaining witness, it is not error to admit evidence of other acts similar to that so relied on, for the purpose of showing the relations existing between the parties.
2. PRACTICE, DISTRICT COURT--Written Communication between Judge and Jury. The fact that written communication relating to the form of the verdict took place between the judge and the jury after the submission of the cause will not require a new trial where it can be said that no prejudice could have resulted to the defendant.
C. C Coleman, attorney-general, J. U. Brown, and Carr W. Taylor, of counsel, for The State.
Hettinger & Hettinger, for appellant.
OPINION
Robert Borchert appeals from a conviction upon a charge of rape alleged to have been committed by his carnally and unlawfully knowing his daughter, she being under eighteen years of age. Various assignments of error are made, only two of which require discussion, one relating to the admission of testimony and the other to communication between judge and jury after the submission of the case. The state was permitted, over defendant's objection, to give evidence of a number of acts of illicit intercourse other than that upon which reliance was had for conviction, each of such acts constituting a violation of the statute under which the charge was made. This the appellant contends to be error, under the authority of The State v. Stevens, 56 Kan. 720, 44 P. 992. The doctrine of that case is that it is not competent in a prosecution for one offense to show that the defendant is guilty of another similar offense merely for the purpose of enabling the jury to infer that as he had committed one crime he would be likely to commit another. It may be that in the course of the opinion too narrow statements are made of the grounds upon which testimony as to other offenses may be admitted. But these expressions must be interpreted in the light of the circumstances giving rise to them. The true rule is that testimony which is otherwise admissible as tending to prove the defendant guilty of the very crime charged is not rendered inadmissible by the fact that it also tends to show that he has committed some other crime.
The real inquiry here is whether the evidence objected to did fairly tend to show that the defendant was guilty of the one criminal act for which he was prosecuted. The state offered it as supporting the charge by showing the previous relations between the defendant and the prosecuting witness. It is well settled that in prosecutions for a single act forming a part of a course of illicit commerce between the sexes it is permissible to show prior acts of the same character. (1 Cent. Dig., col. 2013, § 30; 27 id. col. 44, § 11.) Such cases are sometimes, as in The State v. Markins et el., 95 Ind. 464, 48 Am. Rep. 733, said to form an exception to the general rule that one crime cannot be proved in order to establish another independent crime. In fact, however, they fall within the rule already stated. Such evidence is admitted not because it proves other offenses, but in spite of that fact. Its justification is that it is corroborative of the direct evidence of the offense charged. This is illustrated by a peculiarity of the decisions in Massachusetts. There it was formerly held that in prosecutions for adultery the actual commission of the same offense could not be shown, although any prior familiarities between the same parties short of that might be. This ruling is thus commented upon by Mr. Bishop: "According to which doctrine, if the evidence is a little weak, yet tending remotely to establish the crime, it may be submitted to the jury; but, if it is a little stronger and tends more clearly to the same result, it must be excluded." The Massachusetts court has since rid itself of this anomalous doctrine and conformed to the generally accepted rule. (Bish. Stat. Cr. § 680, and cases cited.)
While the reasons for admitting the evidence of former acts of illicit intercourse may be stronger in prosecutions for offenses involving the actual consent of both parties, they have some application in such a case as the present, where force is no essential element of the offense. They have frequently been held to apply in incest prosecutions where the facts differed in no important particular from those shown by the evidence in this case. In Taylor v. The State, 22 Tex. Ct. App. 529, 3 S.W. 753, 58 Am. Rep. 656, they were given effect in a case of statutory rape, although they were there inaccurately summarized as having relation to defendant's "motive." We but follow the general rule in deciding that the trial court committed no error in this regard.
While the jury were deliberating upon their verdict, and while their balloting showed a disagreement on the question of the defendant's guilt, they sent to the judge a written communication, as follows:
The judge, without calling in the jury, or notifying the parties wrote upon the paper, "Yes.--M. P. SIMPSON, Judge," and returned it to them. Thereafter several ballots were taken, the number of those voting for acquittal being gradually reduced, until finally a verdict was agreed upon and returned, finding the defendant guilty and including a recommendation for mercy. It is argued that the fact that the judge held communication with the jury relative to their verdict otherwise than in open court is of itself ground for reversal, and that the answer given to the...
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...propensity evidence in other kinds of prosecutions." State v. Boysaw , 309 Kan. 526, 534, 439 P.3d 909 (2019) (citing State v. Borchert , 68 Kan. 360, 362, 74 P. 1108 [1904] )."It is well settled that, in prosecutions for a single act forming a part of a course of illicit commerce between t......
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...the evidence of the act charged. For this purpose the evidence of other acts was clearly admissible." In the case of the State v. Borchert, 68 Kan. 360, 74 Pac. 1108, it is held in a prosecution for rape: "The real inquiry here is whether the evidence objected to did fairly tend to show tha......
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...2013, 135 L.Ed.2d 361 (1996). Kansas has a long history of allowing propensity evidence in these kinds of cases.In State v. Borchert , 68 Kan. 360, 361, 74 P. 1108 (1904), the court held that evidence showing "a course of illicit commerce between the sexes" is an exception to the rule that ......
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