State v. Frazier

• Decision Date: 09 March 1895
• Parties: THE STATE OF KANSAS v. GEORGE W. FRAZIER
• Court: Kansas Supreme Court

39 P. 819

54 Kan. 719

THE STATE OF KANSAS v. GEORGE W. FRAZIER

Supreme Court of Kansas

March 9, 1895

Appeal from Saline District Court.

PROSECUTION for rape. The material facts appear in The State v. Frazier 53 Kan. 87, et seq., and in the opinion herein, filed March 9, 1895.

Judgment affirmed.

David Ritchie, for appellant.

F. B Dawes, attorney general, and R. A. Lovett, for The State.

ALLEN J. All Justices concurring.

OPINION

ALLEN, J.:

The defendant was charged with the crime of rape, and a second count was added to the original information, defectively charging an attempt to commit a rape. Two verdicts were returned by the jury, one acquitting on the first count, and the other convicting on the second. From this conviction the defendant appealed to this court, and the judgment was reversed for the insufficiency of the second count of the information, on which the conviction was based. (The State v. Frazier, 53 Kan. 87.)

On the former hearing in this court, the defendant asked an absolute discharge from further prosecution, on the ground that the first count of the information included a charge, not only of the completed offense but also of an attempt; but it was held that he was not entitled to such discharge, and the case was remanded for a new trial. Afterward an amended information was filed by the county attorney, which sufficiently charges an attempt to commit rape. To this the defendant filed his plea in bar, alleging that he had been once tried and acquitted of the identical offense charged in the amended information. To this plea the county attorney demurred. It is urged that a demurrer to the plea admits its averments, and that the plea is clearly good, as it alleges an acquittal on the first, and says nothing about a conviction on the second count. Even if we were to concede that on a demurrer the court may not look beyond the plea, and that, if it state facts constituting a bar, it should be sustained by the court, where the record, as in this case, shows that the plea ought to have been overruled, we think the error, if error it be, a technical one, which, under § 293 of the criminal code, we are required to disregard. The general rule, however, with reference to pleadings is, that a demurrer searches all the pleadings; and we think the court had a right, on the hearing of this demurrer, to examine the whole record, and that the former conviction of an attempt and acquittal of the completed offense did not operate as a bar to a trial under the amended information.

A plea in abatement was also filed, alleging that the defendant had never had a preliminary examination. To this also, a demurrer was filed, and sustained. The defendant, having been once tried for this same offense, cannot now for the first time complain of the want of a preliminary examination.

At the trial, the defendant challenged the array of jurors, on the ground that the jury was not made up as required by law, because no list of names had been returned from the city of Salina, and therefore no jurors were drawn from Salina. It was shown that no list of names for jurors was filed with the county clerk, and consequently none were in attendance from the city. In the case of The State v. Jenkins, 32 Kan. 477, it was said:

"We think the better rule, and the one most likely to do justice, is, that while mere irregularities in the drawing of jurors, or mere informalities on the part of the officers charged with the drawing, ought not to be a sufficient ground for sustaining a challenge to an array, yet it is otherwise where the essential provisions of the statute have been palpably disregarded."

In that case it appeared that the names of the jurors placed on the list were taken from the assessment rolls for the year 1883, when they should have been taken from the rolls of 1882, and it was held that a challenge to the array ought to have been sustained because the law had been disregarded. In that case, no jurors were drawn or summoned from a list made up in accordance with law. In this case, it is not claimed that the jurors in attendance on the court were improperly placed on the list or were persons improperly summoned. The sole objection to the array is, that the city of Salina ought to have contributed its quota of names to the list from which the jurors were drawn. To hold that a failure by a township or city officer to comply with the law, and return names of persons suitable to serve as jurors, would be sufficient ground of challenge to the array, would be likely to occasion great public expense and inconvenience in many cases, without any substantial benefit to persons on trial. We have no reason to believe that the jury in this case was less favorably inclined to the defendant than one would have been drawn from a list including residents of Salina. We do not think the constitutional right of trial by an impartial jury has been denied the defendant.

The defendant moved to quash the amended information, for the reason that it does not state facts sufficient to constitute a public offense. The prosecution is based on § 31 of chapter 31 of the General Statutes of 1889, which reads as follows:

"Every person who shall be convicted of rape, either by carnally and unlawfully knowing any female under the age of 18 years, or by forcibly ravishing any woman of the age of 18 years or upwards, shall be punished by confinement and hard labor not less than five years nor more than 21 years."

It is insisted by counsel for the appellant, with much earnestness and ingenuity, that the act...