State v. Frazier
| Decision Date | 10 March 1894 |
| Citation | 53 Kan. 87,36 P. 58 |
| Parties | STATE v. FRAZIER. |
| Court | Kansas Supreme Court |
1. A defendant charged with a substantive offense may be convicted under that charge of an attempt to commit the offense, but where the prosecutor relies upon a specific charge of attempt, good pleading requires that he should set forth the acts done towards the commission of the offense.
2. An averment that the defendant “unlawfully and feloniously did attempt to commit a rape by then and there attempting to carnally and unlawfully know the said Y.” is defective in failing to set forth any physical act or acts done towards the commission of the offense, and is held to be insufficient as against a motion to quash.
3. Under an information containing two counts, the first of which charged the consummated offense of rape, and the second charged an attempt to commit rape, the jury returned two findings, one of which was that the defendant was “not guilty as charged in the first count of the information,” and the other that the defendant was “guilty as charged in the second count of the information.” Held, that all parts of the verdict should be considered in determining its effect, and that, when the findings are so considered, it is plain that the jury only intended to acquit of an attempt to commit rape, and that therefore the defendant is not entitled to an absolute discharge because of the finding upon the first count.
Appeal from district court, Saline county; R. F. Thompson, Judge.
George W. Frazier was convicted of an assault with intent to rape and appeals. Reversed.
David Ritchie, for appellant.
John T. Little, Atty. Gen., and R. A. Lovitt, for the State.
George W. Frazier was convicted of an attempt to commit rape upon a female under the age of 18 years. The information contained two counts, in the first of which it was alleged that "on the 14th day of April, 1893, in the said county of Saline and state of Kansas, one George W. Frazier then and there in and upon one Anna Yust, a female under the age of eighteen years, to wit, of the age of thirteen years, then and there being, unlawfully and feloniously did commit a rape by then and there carnally and unlawfully knowing her, the said Anna Yust," The second count charged that "on the 14th day of April, A.D. 1893, in the said county of Saline and state of Kansas, one George W. Frazier then and there in and upon one Anna Yust, a female under the age of eighteen years, to wit, of the age of thirteen years, then and there being, unlawfully and feloniously did attempt to commit a rape by then and there attempting to carnally and unlawfully know the said Anna Yust," etc. The sufficiency of the information was challenged by motion to quash, and, as to the second count, it was alleged that the charge was indefinite, uncertain, and insufficient. The court denied the motion, and the trial proceeded before a jury. Two verdicts were returned, in one of which the jury found that the defendant was "not guilty as charged in the first count of the information," and in the other it was found that the defendant was "guilty as charged in the second count of the information."
The acquittal upon the first count leaves no question as to its sufficiency, but the defendant insists that the second count fails to properly charge an attempt at the commission of rape, and that therefore the motion to quash should have been sustained. The prosecutor appears to have been in doubt whether the unlawful conduct of the defendant amounted to the consummated offense of rape, or only to an unsuccessful attempt at that offense, and he seems to have deemed it necessary to set forth both charges in two counts in order to meet the exigencies that might arise from the proof. While an attempt to commit rape is a distinct offense, a separate count charging such attempt was not essential. Our Criminal Code provides that, "upon an indictment for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment and guilty of any degree inferior thereto, or of an attempt to commit the offense." Section 121; State v. Decker, 36 Kan. 717, 14 P. 283. Although the second count was not absolutely necessary, it hardly affords the defendant any ground for...
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State v. Dunn
...explicitly or implicitly that the defendant killed the victim with premeditation. Brown , 21 Kan. at 49–51 ; see also State v. Frazier , 53 Kan. 87, 91–92, 36 P. 58 (1894) (reversing attempted rape conviction and remanding case for further proceedings because of information's failure to all......
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State v. Topham
... ... "The language of the statute cannot always be followed ... in punishments for offenses of either a criminal or a penal ... nature, Enough must be stated to enable the defendant to know ... in what particular he has violated the statute." ... And in ... State v. Frazier , 53 Kan. 87, 36 P. 58, 42 Am. St ... Rep. 274: ... "The physical acts done towards the commission of the ... offense should be stated in the information or indictment, so ... that the court may see whether or not the law has been ... violated, and so that the accused may know ... ...
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Stapleton v. State
...Bishop's New Criminal Procedure, page 39, No. 71; 12 Standard Encyclopaedia of Procedure, page 469; U. S. v. Ford, 34 F. 26; State v. Frazier, 53 Kan. 87, 36 P. 58, Am. St. Rep. 274; State v. Doran, 99 Me. 329, 440, 105 Am. St. Rep. 279; 6 Cyc. of Law and Pr., p. 225; See, also, 3 Ency. of ......
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State v. Davis
...22 C.J.S., Criminal Law § 75, pp. 139, 140; 14 Am.Jur. 816, § 68.' (1. c. 142, 143, 276 P.2d 1. c. 365.) See, also, State v. Frazier, 53 Kan. 87, 90, 36 P. 58; State v. Bowles, 70 Kan. 821, 79 P. 726, 69 L.R.A. 176, and State v. Custer, 85 Kan. 445, 446, 116 P. 507; 1 Wharton's Criminal Law......