[Copyrighted Material Omitted]
Appeal
from Smith District Court.
ON
December 15, 1884, there was filed in the district court of
Smith county, the following information, (court, title
verification and indorsements omitted:)
"I
the undersigned, prosecuting attorney of said county, in the
name, by the authority and on behalf of the state of Kansas,
give information, that on or about the 3d day of November,
1884, in said county of Smith and state of Kansas, one H. B.
Bryan, a male person, did then and there unlawfully and
feloniously obtain illicit connection with one Hattie M.
Kinsley, she, the said Hattie M. Kinsley, then and there
being a female person of good repute, of the age of only
seventeen years; and the said H. B. Bryan did then and there
obtain such illicit connection with the said Hattie M.
Kinsley aforesaid, at the time and place aforesaid, under a
promise of marriage then and there made by him, the said H.
B. Bryan, to her, the said Hattie M. Kinsley, contrary to the
form of the statute in such case made and provided, and
against the peace and dignity of the state of Kansas.
R. M.
PICKLER, Prosecuting Attorney."
Trial
had at the December Term, 1884, before the court, with a
jury. The court (Smith, J., presiding) instructed the jury as
follows:
"In
this case it is charged that at the county of Smith and state
of Kansas, and on or about the 3d day of November, 1884, the
defendant H. B. Bryan, being a male person, did obtain
illicit connection, under promise of marriage, with Hattie M.
Kinsley, a female of good repute and under twenty-one years
of age. To justify a conviction in this case, the state must
establish by the evidence, beyond a reasonable doubt, the
guilt of the defendant, and every fact in the case essential
to show his guilt; that is to say, that before you find the
defendant guilty, you must be satisfied from the evidence
beyond a reasonable doubt that in the county of Smith and
state of Kansas, and at or about the time charged, and within
two years prior to the filing of the information, the
defendant, H. B. Bryan, being a male person, did obtain
illicit connection with Hattie M. Kinsley; that at that time
said Hattie M. Kinsley was under the age of twenty-one years,
and was a female of good repute for virtue and chastity; and
that the defendant obtained such illicit intercourse with
said Hattie M. Kinsley under a promise of marriage. It is
essential that such illicit intercourse was obtained by the
inducement of the promise of marriage, and that said Hattie
M. Kinsley consented to such illicit intercourse by reason of
such promise of marriage. There may have been any number of
other reasons or inducements existing or offered by the
defendant, which contributed to impel said female to assent
to such intercourse. To justify a conviction in this case,
you must believe beyond a reasonable doubt that the defendant
obtained illicit intercourse with Hattie M. Kinsley under and
by reason of this promise to marry said Hattie M. Kinsley,
without which promise such intercourse would not have been
obtained. The burden of proving the guilt of the defendant
rests upon the state, and at no stage of the proceedings does
the burden shift upon the defendant to prove his innocence.
You are the exclusive judges of the facts in this case, and
of the weight of the evidence, and of the credibility of the
witnesses; and in determining the weight to be given to the
evidence of any witness, you may take into consideration the
interest of any in the result of your verdict, his means of
knowing and his ability to remember the facts, concerning
which he has testified; his disposition to speak the truth or
otherwise, and all other circumstances surrounding such
witness in connection with the case; and should you believe
from the evidence that any witness has willfully testified
falsely to any material matter in this case, you may
disregard the whole of the evidence of such witness, or you
may give such evidence such weight as you believe it entitled
to. A woman's repute for chastity and virtue is what
people generally, of her acquaintance, say of her in this
regard. It is the name she generally bears in this regard
among her neighbors and acquaintances; and to justify you in
finding the defendant guilty in this case, you must be
satisfied from the evidence beyond a reasonable doubt that at
the time of the alleged intercourse with the defendant, said
Hattie M. Kinsley was of good repute for chastity and virtue.
If a woman's neighbors and acquaintances say nothing of,
or do not question her character for chastity and virtue,
then her repute in this regard should be considered good. You
are further instructed that you may consider the testimony of
said Hattie M. Kinsley in determining whether or not there
was, at the time of the alleged intercourse, a subsisting
promise on the part of the defendant to marry her; but the
testimony of said Hattie M. Kinsley alone is not sufficient
evidence to establish such fact; and unless you have other
evidence of such fact, you must find the defendant not
guilty. Should you, however, believe that the testimony of
another witness or other witnesses corroborates the evidence
of Hattie M. Kinsley on this point, or should the
circumstances of the case which are established independently
of the testimony of Hattie M. Kinsley, corroborate the
testimony of Hattie M. Kinsley as to such promise of
marriage; and should you believe beyond a reasonable doubt
that the defendant did promise to marry Hattie M. Kinsley, as
charged, then you will find such promise of marriage as a
fact in the case."
At the
request of the county attorney, the court also gave the
following special instructions:
"The
court instructs the jury that in determining the guilt or
innocence of the defendant, they may take into consideration
all the circumstances of the case, together with the
difference in age and intelligence of the parties, if any.
"The
court instructs the jury that if they find from the evidence
the defendant guilty of obtaining illicit connection, under
promise of marriage, with Hattie M. Kinsley, a female of good
repute, and under the age of twenty-one years, at any. time
within two years prior to the date alleged in the
information, that evidence tending to show the bad reputation
of the said Hattie M. Kinsley after the alleged commission of
the crime, cannot be taken into consideration in determining
the innocence of the defendant."
At the
request of the defendant, the court gave the following
special instructions:
"The
court instructs the jury that any promise of the defendant to
marry said Hattie M. Kinsley, made after the act of
intercourse, will not sustain the charge against said
defendant; but such promise, if any such was made, can only
be considered by you as a circumstance in the case to prove
the former contract, if any was made.
"The
court instructs the jury that before you can find the
defendant guilty, that you must first find that said Hattie
M. Kinsley was a person of good repute and unmarried at the
time of making the marriage contract with the said defendant,
and under twenty-one years of age."
The
jury returned a verdict of guilty of the offense charged in
the information against the defendant. A motion in arrest of
judgment was made, but was overruled; and a motion for a new
trial was made, which was also overruled. Thereupon the
defendant was sentenced to be confined in the county jail of
Smith county for a term of six months from and including
December 26, 1884, and to pay a fine of $ 1,000, together
with all the costs of the prosecution taxed in the case, and
that he stand committed to the jail of said Smith county
until the fine and costs were paid. The defendant excepted to
the rulings, sentence and judgment of the court, and brings
the case here.
Judgment affirmed.
HORTON
C. J. All the Justices concurring.
OPINION
HORTON, C. J.:
The
appellant was convicted for a violation of § 36, chapter
31, Compiled Laws of 1879. This section reads as follows:
"If any male person shall obtain illicit connection,
under promise of marriage, with any female of good repute,
under twenty-one years of age, he shall be adjudged guilty of
a misdemeanor, and shall be punished by fine not exceeding
three thousand dollars, or by imprisonment not exceeding two
years, or both such fine and imprisonment: Provided,
That the testimony of the woman alone shall not be sufficient
evidence of a promise of marriage."
The
information charges the offense in the language of the
statute. The appellant moved to quash the same, for the
reason that the information did not sufficiently charge that
the prosecutrix, Hattie M. Kinsley, was of good repute at the
time of the marriage contract; that the information did not
charge that the prosecutrix was, at the time of the marriage
contract, a single woman, or that the appellant was a single
man; and that the information did not allege that the
marriage contract $=[#xfffd] was the moving cause or...
