State v. Fahy
| Decision Date | 11 May 1968 |
| Docket Number | No. 45080,45080 |
| Parties | STATE of Kansas, Appellee, v. Thomas FAHY, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
In a prosecution for child abuse and torture, in the absence of satisfactory abstracts, the transcript is examined and it is held, the trial court did not err (1) in failing to direct the county attorney to show the specific time of the alleged unlawful acts, (2) in not requiring medical reports of the complaining witness, (3) in permitting cross-examination of defendant and his witness as to conviction of contributing to the dependency and neglect of a minor and (4) in holding K.S.A.1967 Supp. 38-714 not to be too vague and indefinite to be enforceable as a penal statute.
Stephen C. Chambers, Olathe, argued the cause, and John J. Gardner, Olathe, was with him on the briefs for appellant.
Gerald E. Williams, Asst. County Atty., argued the cause, and Robert Londerholm, Atty. Gen., and James Bouska, County Atty., were with him on the briefs for appellee.
HATCHER, Commissioner.
This is an appeal from a conviction of child abuse and torture as prohibited by K.S.A.1967 Supp. 38-714.
The defendant was charged with three counts of statutory rape and one count of child abuse and torture. He was acquitted of the statutory rape charges but found guilty by the jury of child abuse and torture. The appeal is from the latter conviction.
Because the abstract of both the appellant and appellee left much to be desired we have called for the transcript in order that the court be fully informed as to the procedure and the evidence.
There is surprisingly little dispute as to the facts on the abuse and torture issue.
The complaining witness, a young girl just under sixteen years of age, was living with her mother and two younger brothers in Overland Park, Kansas, the father having died in August, 1964. The mother worked at Federal Aviation at Olathe, Kansas, handling teletype and flight data. She started dating the defendant, a young man twenty-seven years of age, sometime in 1965. During the middle of September or the first part of October, 1965, the defendant started staying at the home to be with the children when the mother worked a night shift. After the first of January, 1966, the defendant made the home his permanent residence. The mother and the defendant were married March 27, 1966.
The family life was not too congenial-it appears that on June 17, 1966, the mother and the defendant were brought before the juvenile court on charges of contributing to the dependency and neglect of a minor. The charges were instigated by the present complaining witness.
So much for the family history. We come now to the specific facts surrounding the charge of abuse and torture.
The complaining witness testified:
She had driven the car the evening before, November 17, 1966, without permission and the defendant found out about it the next morning. When she came home from school, November 18, she was sent to her room. Her mother left for work about 11:20 in the evening. About 11:30 the defendant came into her room, got her out of bed and sent her to the kitchen. The defendant had been drinking heavily, consuming eight or nine beers during the episode in question. He followed the complainant into the kitchen, started slapping her and asking her if taking the car was that much fun. He kept slapping her across the face. About an hour later he ordered her to take her pajamas off. As she made no move he unzipped them and told her to take them off, which she did. He told her to stand up close to him. He was sitting on the kitchen stool. He then, over a period of time, burned her on the breasts and stomach with a cigarette while continuing to slap her. She was burned at ten or eleven places. At 5 or 6 o'clock in the morning his eyes became bloodshot and his voice slurred. He let her go to bed about 7:30, just before her mother came home from work. The witness further testified:
When her mother came home she got some vaseline to put on the burns. She put it on one and the witness put it on the rest while the mother got an ice pack for her face.
The mother, testifying for defendant, stated:
When she came home from work she put her head in the complainant's room and saw that her lips were cut and swollen. She was told that defendant did it. She got an ice pack for the face. The mother was told that the defendant accidentally burned the complainant with a cigarette. It was a very slight burn, no blister. The mother put vaseline on it.
The defendant testified:
'Q. All right. Did you see your wife leave for work?
'A. Yes, I did.
'Q. What time was that?
'A. Approximately 11:15 or 11:20.
'Q. All right. Just describe to the jury from thereon, how long did you talk to (complainant), what did you do, and what transpired.
'A. Well, I talked to (complainant) until about 1:30 or 2:00 in the morning. I was trying to, I guess, talk some sence into her head. She didn't care. She said, 'I don't care if it hurts you because it hurts mother, therefore, I am going to keep on doing it'. I tried to reason with her. This, it was like talking to a blank wall. I would say something and she would use profanity towards me. Then I would slap her. She would settle down a little bit then. I would talk some more, and she would start sassing back and using profanity again. She would be slapped. This went on, oh, like I said, until about 1:30 or 2:00 I told her to go to bed, and I went to bed myself.
Defendant testified further that if he burned the complainant it was accidental by slapping her while he had a cigarette in his hand. He did not ask her to take off her pajamas. He let her go to bed between 1:30 and 2:00. None of the blows or slaps he gave her knocked her down.
The defendant has appealed from his conviction of torture and abuse.
The appellant first objects to the trial court's refusal to direct the county attorney, upon the appellant's application, to amend the information to show the specific time of the alleged unlawful acts or in the alternative to file a bill of particulars pursuant to K.S.A. 62-1341.
The trial court did not direct the county attorney because it was informed that the dates were set out as specifically as possible and the evidence to be presented as to dates would be the same as that presented at the preliminary hereing.
Furthermore the defendant does not question the time he spent with the complainant after 11:20 o'clock the evening of November 18, 1966, and the morning of the 19th, after the mother had gone to work, and kept her up slapping her while he drank eight or nine cans of beer. In fact, there is very little difference between the testimony of the complaining witness and the appellant on the charge of torture and abuse other than the length of time it continued and the unrobing and burning.
Also, the trial court permitted the defendant to produce his time sheets while at work and any other alibi evidence he desired.
...
To continue reading
Request your trial
-
Bowers v. State
...Hunter v. State, Ind., 360 N.E.2d 588 (1977) ("inflicting unnecessarily severe corporal punishment upon a child"); State v. Fahy, 201 Kan. 366, 440 P.2d 566 (1968) ("Any person who shall torture, cruelly beat or abuse any child . . . or who shall willfully inflict . . . any cruel or inhuman......
-
State v. Wilkins
...(State v. Ralls, 213 Kan. 249, 255, 215 P.2d 1205) and when the juvenile files are first introduced by defendant (State v. Fahy, 201 Kan. 366, 370, 440 P.2d 566). Appellant cites no authority to support his position urging exclusion of this type of impeachment evidence except for the provis......
-
State v. Cornell
...is prohibited." People v. Webb, 128 Mich.App. 721, 727, 341 N.W.2d 191 (1983). (Footnotes and citations omitted.) In State v. Fahy, 201 Kan. 366, 440 P.2d 566 (1968), the Kansas Supreme Court concluded that the use of the word "torture" in that state's child abuse statute did not render it ......
-
State v. Cornell
...word "torture." Chambers v. State, 364 So.2d 416 (Ala.Cr.App.1978); State v. Stuart, 110 Idaho 163, 715 P.2d 833 (1985); State v. Fahy, 201 Kan. 366, 440 P.2d 566 (1968); People v. Webb, 128 Mich.App. 721, 341 N.W.2d 191 (1983); People v. Biegajski, 122 Mich.App. 215, 332 N.W.2d 413 (1982);......