State v. Fry

• Decision Date: 10 November 1888
• Parties: THE STATE OF KANSAS v. HUGH H. FRY
• Court: Kansas Supreme Court

19 P. 742

40 Kan. 311

THE STATE OF KANSAS v. HUGH H. FRY

Supreme Court of Kansas

November 10, 1888

Appeal from Crawford District Court.

THE opinion states the nature of the prosecution, and the material facts. On April 20, 1888, the defendant, Hugh H Fry, was sentenced to imprisonment in the state penitentiary for one year. He appeals.

Judgment reversed.

D. B Van Syckel, for appellant.

S. B Bradford, attorney general, and Ed. Van Gundy, county attorney, for The State.

VALENTINE J. JOHNSTON, J., concurring. HORTON, C. J., dissents.

OPINION

VALENTINE, J.:

This is a criminal prosecution upon an indictment in which it is alleged that the defendant, Hugh H. Fry, gave aid to C. C. Parker for the purpose that Parker might avoid a criminal prosecution. The defendant was convicted and sentenced, and he now appeals to this court. The counsel for the state urge that this court cannot enter into any examination of the merits of the case, for the reason that that portion of the record brought to this court which purports to be a bill of exceptions, is not a bill of exceptions. And this they urge for the alleged reason that the supposed bill of exceptions was not allowed by the court or made a part of the record, but was a mere chambers order. Now this bill of exceptions purports in every respect to be a bill of exceptions; and at its close the following language is found:

"Wherefore, the said defendant presents this his bill of exceptions to the court, and prays the court to allow, sign and seal the same, and make it a part of the record in this case. And the court, on this 21st day of April, 1888, having the above bill of exceptions presented, and having examined the same, finds the same to be a true and correct bill of exceptions in the above-entitled cause, hereby allows, signs and orders the same to be placed on file with the pleadings in said cause, and the same is hereby made a part of the record in this case."

This bill of exceptions is signed by the judge of the court, and filed by the clerk; and it purports to be the action of the court, and not merely that of the judge at chambers. The only thing lacking to make this bill of exceptions perfect in every respect, is a journal entry by the clerk showing that the bill of exceptions was allowed by the court and made a part of the record. But we do not think that this failure on the part of the clerk destroys the validity of the bill of exceptions. (See Criminal Code, § 219; Civil Code, §§ 299 to 303; Williams v. Hersey, 17 Kan. 18.) We think the bill of exceptions is sufficient. We shall now proceed to the consideration of the merits of the case.

The principal facts of this case, briefly stated, are substantially as follows: On October 14, 1886, Dr. C. C. Parker's residence was at Yates Center, Woodson county, Kansas, but he owned a drug store and had an office at Farlington, in Crawford county, Kansas. The defendant, Hugh H. Fry, with his family, resided on a farm about three miles west of Farlington, and about seven or eight miles north of Girard. Henry G. Brown, with his family, including his daughter, Sarah R. Brown, resided about a quarter of a mile west of Fry's, on a farm belonging to a man by the name of Hetherington. He had formerly resided on Fry's farm. On that day, October 14, 1887, and just before sundown, Sarah R. Brown, with the consent of her parents, started from her home and from Fry's to take an all-night's ride in the direction of Independence, Montgomery county, Kansas, with Dr. Parker, in a buggy drawn by two horses. She was then fourteen years and ten months old. They passed through Brazilton, in Crawford county, and some distance beyond and near to the county line between Crawford and Neosho counties, when Dr. Parker stopped to feed his horses. It was then dark. He removed the horses from the buggy, fed them, and then returned to the buggy, where Sarah R. Brown still remained. They then had sexual intercourse. No force was used, and nothing done that would render such intercourse rape at common law, or under the statutes as they existed prior to June 20, 1887. But it was rape, however, under § 31 of the act relating to crimes and punishments as that section was amended by chapter 150 of the Laws of 1887, for the girl at that time was under eighteen years of age, and was therefore not capable under the statute of giving her consent. Immediately afterward, Dr. Parker hitched the horses to the buggy, and they then passed on through other towns, among which, as the girl thinks, were Parsons and Cherryvale. At Cherryvale they stopped for some time. They then passed on to Independence, arriving there about noon on October 15, 1887, when they separated, Sarah R. Brown going by railroad to Yates Center, where she expected to stay and did stay for some time at Dr. Parker's house and with his wife, Mrs. Parker. Dr. Parker returned to Farlington. Sarah R. Brown afterward returned to her father's home. She says she returned about December 16, 1887, but from the other evidence she must have returned sooner. She was certainly at home on December 15, 1887. She says she never told anyone anything concerning her sexual intercourse with Dr. Parker until she told her mother, and that she did not tell her mother until she had been at home about a month. Probably she told her mother sooner, for she told her mother on December 16, 1887. She did not tell her mother, however, until after her mother had ascertained that her monthly courses had ceased, and until her mother had become uneasy about it, and had questioned her closely as to whether or not she had not been with some man. She then told her mother that she had been with Dr. Parker. The day previous to this, however, she with her father and mother visited Dr. Parker's office for the purpose of obtaining from him some medicine to start her courses, which medicine they obtained. Dr. Parker at the time, but probably in the absence of her father and mother, and while she was alone with him, desired to make an examination of her, but she refused to permit him to do so. In a short time after this, as she testified, she "came around all right."

As before stated, she told her mother on December 16, 1887 which was the next day after they had been at Dr. Parker's office, of what had occurred between her and Dr. Parker during their night's ride in October. Her father was away from home at the time. That morning he had taken a load of corn for Fry to Girard. He returned just after noon. On his way home he saw Dr. Parker's team at John Doctor's. When he returned home the girl's mother told him what the girl had told her. According to the testimony of Andrew W. Fry, who was near by at the time, the girl's father then made threats of killing Dr. Parker. The girl's father, however, denied this, or partially denied it. On the same day and in the afternoon of that day, the girl's father, Brown, went to the defendant Fry's house and communicated to Fry what had occurred between Dr. Parker and his daughter. Fry and his wife testified that Brown at that time made threats of personal violence to Dr. Parker, but Brown denied, or partially denied the same, and testified that he said that he "could," and not that he would "cut his [Dr. Parker's] d--d heart out as easy as I [Brown] could stick a hog for meat." At the same time, and before that time, Fry and his wife were sureties on certain notes for Dr. Parker, to the amount of three or four hundred dollars, and Parker also owed Mrs. Fry for money loaned by her to him. Indeed, up to this time the Frys and Dr. Parker had been intimate friends. These business matters were spoken of at this time between Brown and Fry, but as to just what was said about them there is a conflict in the evidence. Brown testified that he said to Fry on this subject as follows: "I says, I am sorry for you, and my opinion is, the best thing you can do is to go and notify the parties you are owing it to, you will not stand good for Parker another minute." Fry testified that Brown told him to go to Farlington and see Dr. Parker, and get his name off the notes. Brown testified that he had intended to go on to Farlington that afternoon, but that he changed his mind at the suggestion of Fry, and went to Girard. He went to Girard for the purpose, as he stated, and as he stated he told Fry, of getting a warrant for Dr. Parker; but he did not get it that day inferably, from what he stated, for the reason that it was not then sufficiently known whether the supposed offense of Dr. Parker was committed in Crawford county, or in some other county. As Brown returned from Girard on that day, or rather evening, he again stopped at Fry's and had further conversation with Fry. On the next day, October 17, 1887, in the morning, Brown again went to Girard, taking with him at that time his wife and daughter, Sarah R. Brown, and two small children. On his way he again stopped at Fry's and had some conversation with Fry. On the same day, and soon afterward, Fry started to go to Girard, taking with him his wife Clarinda Fry, and Miss Clemie Michael, the school teacher for that district, who was then making her home at Fry's. He went about three miles out of his way for the purpose of also going to Farlington. When he arrived at Farlington he went into Dr. Parker's office, leaving the two women in the wagon. Dr. Parker was in his office at the time. Fry soon called for Mrs. Fry, and she also went into Dr. Parker's office, leaving Miss Michael alone in the wagon. They remained in the office a few minutes and then returned to the wagon, and then left Farlington and went on to Girard. What was said during the time by Fry or his wife, or Dr. Parker, is not shown by any evidence in the case, except that of Fry and his wife. They...