State v. Daugherty
| Decision Date | 06 July 1901 |
| Docket Number | 12,575 |
| Citation | 65 P. 695,63 Kan. 473 |
| Parties | THE STATE OF KANSAS v. C. N. DAUGHERTY |
| Court | Kansas Supreme Court |
Decided July, 1901.
Appeal from Comanche district court; E. H. MADISON, judge.
STATEMENT.
APPELLANT a man about forty years old, was upon his trial in the district court of Comanche county upon a complaint charging statutory rape committed upon the person of his foster-daughter, a child between twelve and thirteen years of age. The child had been living with appellant and wife since she was four or five years old. From the evidence, it appears that one evening, about nine or ten o'clock, he, with the child, both riding horses, started to go to the home of a neighbour, about one mile away, where the wife of appellant was assisting in caring for a sick child. In making the trip they took the longer and more secluded of two ways and arrived at the neighbor's house somewhere about midnight. On the way, as the child testifies, appellant stopped the horses and took her from the one she was riding, laid her down on the ground, and, despite her protestations, had sexual commerce with her. Upon arriving at the neighbor's house the wife of appellant, the foster-mother of the child desiring to know of the child why they were so late, was told by her of the transaction which had taken place on the way. The jury found the appellant guilty, and he was sentenced to serve a term in the penitentiary. From this conviction he appeals, and assigns many errors.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. CHANGE OF VENUE -- Case Followed. The rule relative to sustaining an application for a change of venue, as laid down in The State v. Furbeck, 29 Kan. 532, approved and applied.
2. JURY AND JURORS -- Competency. Not portions only, but all of the answers of a juror being examined upon his voir dire, must be looked to in order to ascertain his competency, and, upon such consideration in this case, it is held that certain jurors objected to were competent, under the rules laid down by this court.
3. CRIMINAL PRACTICE -- Presence of Defendant -- Presumptions upon Review. While it is necessary that a defendant on trial for a felony should be present at all stages of the trial, a record that does not show affirmatively his absence, but is simply silent upon that point, does not show error in the proceedings of the trial court. This is especially so where the record affirmatively shows the presence of the defendant at the commencement and close of the trial. In either case, the presumption is that he was present at all stages thereof.
4. CRIMINAL PRACTICE -- Jury and Jurors -- Presumptions upon Review. The same presumption of regularity prevails as to the matter of admonishing the jury as directed by the statute upon each separation, where the record is silent; and this is so even though the record shows that the jury were instructed to be in their seats at a given time, the expression of the one not indicating the omission of the other.
5. RAPE -- Certain Testimony Held Competent. In the trial of a person charged with statutory rape, the fact that the prosecuting witness made timely complaint of the outrage committed upon her may be shown where it further appears that the acts of the defendant would constitute the crime of rape as defined by the common law.
6. RAPE -- Common Law and Statutory. Where a man forty years of age, the foster-father of a female child between twelve and thirteen years of age, in a secluded place, in the night-time, lifts her from a horse on which she had been riding, lays her upon the ground, and, despite her request that he desist, has carnal knowledge of her, he is guilty of the crime of rape as defined by the common law as well as of that known as statutory rape.
7. RAPE -- Errors in Admission of Evidence Cured. In prosecutions for the crime of rape, neither the name of the assailant nor the details of the transaction, as given by the assailed, may be repeated in evidence by the party to whom she made timely complaint; but where the court has permitted the name of the assailant so to be given, the error is cured where, upon cross-examination of the same witness, the defendant draws out the circumstances in detail and the name of the assailant; and especially is this so when the court, at the request of the defendant, withdraws from the consideration of the jury the testimony of such witness in this respect.
A. A. Godard, attorney-general, and J. S. West, for The State.
J. C. Wilson, J. W. Perry, and Dick H. Rich, for appellant.
An application for a change of venue was made and overruled. It was supported by a large number of affidavits which tended to show the hostile feeling of the inhabitants of the county against the appellant, and generally expressed the opinion that he could not obtain a fair and impartial trial by reason thereof. These affidavits very generally followed the same form, and were evidently prepared in bulk by attorneys and signatures obtained to them. A less number of affidavits were filed by the state, some made by officials of the county, showing a general acquaintance with the people of the county, all of them tending to disprove the facts and conclusions stated in the affidavits filed by appellant. Of necessity, the question of a change of venue, depending as it does upon matters of fact, must be left very largely to the sound discretion of a trial court. The rule as laid down in this court is:
"Before a court is justified in sustaining an application for a change of venue on account of the prejudice of the inhabitants of the county, it must affirmatively appear from the showing that there is such a feeling and prejudice pervading the community as will be reasonably certain to prevent a fair and impartial trial." ( The State v. Furbeck, 29 Kan. 532.)
This rule necessarily carries with it the duty of the trial court to determine, upon a full consideration of the entire showing, whether such a state of feeling does exist. It calls for the exercise of a sound judicial discretion. The presumptions are in favor of the correctness of the conclusions reached. In this case we cannot say that, upon the showing made, appellant was entitled to a change of venue, or that the trial court abused its sound discretion in refusing the same.
Appellant claims that the trial court erred in overruling his challenges to four jurors whom he contends were shown to be incompetent on their voir dire. Without quoting this examination, we may say that we do not think that such examination shows the incompetency of the challenged jurors to sit. Selected portions of their examination may show that they had formed or expressed some opinions as to some of the material facts in the case, but upon the whole of such examination it does not so appear. They had heard the matter talked of to some extent, and had each, perhaps, some impression as to the case, but not such an impression as under the rules of this court disqualified them to sit as jurors. All expressed themselves as being satisfied that they could render a fair and impartial verdict after hearing all of the evidence, and their willingness to be tried, if they were arraigned upon a criminal charge, by men of as unbiased minds as they themselves possessed. We think these jurors were competent under the rules heretofore laid down by this court.
More serious questions arise in the fourth and fifth assignments of error, and as they are analogous, they will be considered together. The record fails to show affirmatively that the appellant was present at all times during the trial. Nor does it show affirmatively that the jury were admonished, as required by statute, upon each separation. It does show that the defendant was arraigned and pleaded "not guilty," and it also shows that he was present when sentence was pronounced. The appellant insists that, as it is necessary that the defendant should have been present at all stages of the trial below, in the absence of a showing that he was so present it must be presumed that he was not, and that therefore the record shows affirmative error.
He cites many authorities in support of his contention and might have cited more, and we are free to admit that the weight of authority is with him in this contention, but neither the many authorities nor the reasons given therein for the rule convince us of its soundness. The reason generally given is that the rights of one charged with a crime must be very jealously guarded by the courts, and with this statement we find no fault. It is only to its application that we object. It is not a case of guarding the rights of one charged with a crime. If we might say that the want of showing that he was present proves that he was absent, then our way would be clear, but we do not think this to be the correct rule. Errors are not presumed; presumptions are to the contrary. This court has decided the rule to be different from that insisted upon by the appellant. In The State v. Potter, 16 Kan. 80, where it was urged that the defendant must be present in court when an application for a change of venue in a criminal case was heard, and where the record did not show that he was so present, the court, in passing upon the question, said:
"But even if it were necessary, we would presume in favor of the regularity and validity of the proceedings of the court below, where there is nothing to show the contrary, that the defendant was personally present in the court when said change of venue was granted." (See, also, McCartney v. Wilson, 17 Kan. 294; The State v. English, 34 id. 629, 9 P. 761; The State v. Baldwin, 36 id. 1, 12 P. 318.)
Upon this proposition this court does not...
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