State v. Bryan

• Decision Date: 09 October 1885
• Citation: State v. Bryan, 34 Kan. 63, 8 P. 260 (Kan. 1885)
• Parties: THE STATE OF KANSAS v. H. B. BRYAN
• Court: Kansas Supreme Court

8 P. 260

34 Kan. 63

THE STATE OF KANSAS v. H. B. BRYAN

Supreme Court of Kansas

October 9, 1885

[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.

Corn & Myers, for appellant.

S. B. Bradford, attorney general, for The State; Edwin A. Austin, of counsel.

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 consideration for the illicit connection.

The information did charge that the prosecutrix was of good repute at the time of the marriage contract as well as at the time of the illicit connection, as the promise of marriage is...