State v. Funk
| Decision Date | 08 November 1941 |
| Docket Number | 35216. |
| Citation | 154 Kan. 300,118 P.2d 562 |
| Parties | STATE v. FUNK. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Defendant's failure to comply with all provisions of statute pertaining to stay of execution of sentence might constitute ground for obtaining defendant's incarceration, but it did not compel a dismissal of an appeal in Supreme Court, where the appeal was otherwise properly perfected. Gen.St.Supp.1939 62-1724(b).
Evidence including testimony of complaining witness and physician who examined complaining witness shortly after alleged offense occurred, was sufficient to present question for jury as to whether actual penetration occurred, so as to establish crime of rape.
In prosecution for forcible rape, testimony touching recent conduct of defendant toward young girls other than complaining witness was competent for purpose of showing lustful disposition and system of operation, although no criminal prosecution or conviction resulted from such other acts.
In prosecution for forcible rape, testimony touching conduct of defendant toward a young girl other than complaining witness offered for purpose of showing lustful disposition and system of operation, was not incompetent by reason of fact that it occurred after the crime charged.
In prosecution for forcible rape, testimony of complaining witness and of her mother that certain statements, in absence of defendant, were made by complaining witness shortly after offense was allegedly committed was competent as part of the "res gestae", where statements were made by complaining witness shortly after she reached her home and at a time when she was still suffering from extreme nervous shock.
In prosecution for forcible rape, testimony of complaining witness and of her mother that certain statements, in absence of defendant, were made by complaining witness shortly after alleged offense was committed was not incompetent as "hearsay", where testimony was merely offered in proof of fact that such statements were made, and not in proof of the truth thereof.
Proof that court bailiff, clerk of district court and sheriff were in presence of jurors at an evening meal and on way to and from the meal, and that the sheriff was one of state's witnesses, did not require granting a new trial, where record did not disclose any conversation or act on part of the persons which tended to prejudice defendant's rights.
Evidence supported conviction of forcible rape, as against defense of alibi.
1. Failure to comply with all provisions of G.S.1939, Supp 62-1724 (b), pertaining to stay of execution of sentence may constitute ground for obtaining defendant's incarceration but it does not compel a dismissal of an appeal in this court, if the appeal is otherwise properly perfected.
2. In a prosecution for forcible rape, testimony touching recent conduct of defendant towards other young girls is competent for the purpose of showing lustful disposition and system of operation, although no criminal prosecution or conviction has resulted from such other acts.
3. Testimony of the complaining witness and of another witness that certain statements, in the absence of defendant, were made by the complaining witness shortly after the offense was committed are not made incompetent by the hearsay rule where the testimony is merely offered in proof of the fact such statements were made and not in proof of the truth thereof.
4. The record in a forcible rape case examined and Held: (1) No reversible error was committed in the admission of testimony; (2) the motion for a new trial was properly overruled.
Appeal from District Court, Russell County; C. A. Spencer, Judge.
Jake Funk was convicted of forcible rape, and he appeals.
Jerry E. Driscoll and Harold W. McCombs, both of Russell, for appellant.
Jay S. Parker, attorney-general, and Floyd L. Kirkman, Co. Atty., of Russell, for appellee.
The defendant was convicted of forcible rape and appeals.
Before considering appellant's contentions we shall notice appellee's contention that appellant waived his right of appeal by reason of failure to comply with all the provisions of G.S.1939, Supp. 62-1724, subdivision (b), which specifies what appellant shall do in the event he desires to have execution of his sentence stayed, or to be released from custody on bond pending his appeal. We do not think the statute was so intended and it should not be so construed. The appeal was taken within six months from the date of sentence and if the stay of execution was not properly obtained the remedy of the state is not to have the appeal dismissed but to have appellant incarcerated.
Appellant first contends the crime of rape was not established for the reason the evidence failed to prove actual penetration. The contention is not good. The complaining witness was eighteen years of age and according to undisputed medical testimony was a virgin. The hymen was torn and was bleeding. She suffered great pain. We do not deem it necessary or desirable to spread upon the pages of the Kansas reports the details of other testimony relative to the subject of penetration. The evidence of the complaining witness and the testimony of the doctor who examined her shortly after the event occurred, amply warranted submitting to the jury the question of actual penetration under proper instructions. Furthermore, it is not contended objection was made to the instruction when given. Nor is it now urged the instruction was erroneous or inadequate.
It is next urged the court erred in the admission of evidence over defendant's objection. Part of the testimony objected to pertains to the testimony of two other girls who testified to acts and conduct of the defendant designed to show his lustful disposition. Defendant had followed them on the streets of the town of Russell, and sought to induce them to get into his automobile. These two incidents occurred only a day or two before the incident now under consideration. It was in a similar manner that defendant followed the complaining witness and induced her to get into his car on the pretext that he would take her home. Another incident disclosing his lustful disposition occurred after the present incident. Defendant contends no crime was committed in connection with these other incidents and the testimony was incompetent. It has been held such testimony is competent in sex cases for the purpose of showing the lustful disposition and the system used with other young girls in taking indecent liberties with them. State v. Jenks, 126 Kan. 493, 494, 268 P. 850. The testimony which disclosed defendant's attempt to pick up other young girls, in the same manner in which he had picked up the complaining witness, also tended to corroborate, at least in part, the charge upon which he was being tried. State v. Jenks, supra, 126 Kan. page 494, 268 P. 850. Defendant concedes the testimony was admitted upon the theory it tended to show defendant's lustful disposition. That instruction is not before us and does not appear to have been challenged. Appellant, in fact, concedes he requested a similar instruction. It is not contended the instruction given did not properly limit the purpose for which the testimony might be considered by the jury.
Appellant urges that in any event the testimony concerning lustful disposition which pertained to an occasion six months after the...
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State v. Boysaw
...young women of his congregation with whom his ministerial calling gave him special and trusted social contacts."In State v. Funk , 154 Kan. 300, 302, 118 P.2d 562 (1941), the defendant was convicted of forcible rape after he induced his victim to go for a ride in his car. This court found n......
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State v. Boysaw
...(1926). The Kansas Supreme Court continued to apply the lustful disposition exception through the 1940s and 1950s. In State v. Funk, 154 Kan. 300, 302, 118 P.2d 562 (1941), testimony of two other girls was admissible to show the defendant's lustful disposition “and the system used with othe......
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State v. Clements, 59135
...where evidence of two previous similar offenses against other women was competent in a prosecution for attempted rape; State v. Funk, 154 Kan. 300, 118 P.2d 562 (1941), where evidence of recent conduct of defendant toward other young girls was competent to show lustful disposition and syste......
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Drake v. Moore
...150 P. 562. See also State v. Morrison, 64 Kan. 669, 680, 68 P. 48; State v. McCrady, 152 Kan. 566, 568, 106 P.2d 696; State v. Funk, 154 Kan. 300, 303, 118 P.2d 562. The lapse of time between the occurrence of the accident and the utterance of the statements is not as important as the cond......