State v. Gaunts

• Decision Date: 10 June 1899
• Docket Number: 11373
• Citation: 57 P. 503,60 Kan. 660
• Parties: THE STATE OF KANSAS v. WILLIAM GAUNTS
• Court: Kansas Supreme Court

57 P. 503

60 Kan. 660

THE STATE OF KANSAS v. WILLIAM GAUNTS

No. 11373

Supreme Court of Kansas

June 10, 1899

Decided January, 1899.

Appeal from Ottawa district court; R. F. THOMPSON, judge.

Judgment reversed.

A. A Godard, attorney-general, and F. D. Boyce, county attorney for The State.

J. B Tomlinson, and Mohler & Hiller, for appellant.

OPINION

DOSTER, C. J.:

This is an appeal from a conviction of the offense of what is commonly designated as "statutory rape"; that is, of carnally knowing a female under eighteen years of age, without force and not against her will. The prosecution was by indictment, which contained but one count, and alleged the commission of the offense on the 25th day of December, 1896. The evidence on behalf of the state tended to show two offenses, one in November, the other in December, 1896. The defendant did not move the court at the close of the evidence for the prosecution to require the state to elect upon which of the claimed offenses it would demand a conviction, as he might have done, but introduced evidence in denial of both the imputed acts. After the evidence was all in, and when the court was about to charge the jury, the defendant moved that the state be compelled to make its election. The court overruled the motion, upon the ground that it had been made at too late a stage of the trial. The overruling of this motion constitutes the principal claim of error.

The complaint of the appellant is well grounded. The rule is that, in indictments for felony charging a single offense, the defendant can only be held to answer for a single separate and complete felonious act. It may develop in the course of the trial of a defendant charged with a single offense that he has been, perhaps, guilty of two or more offenses of a like kind. In such cases it is the right of the accused to demand that the state elect as to which of the claimed offenses it will require him to respond. As to the limitations upon the right of the state in such cases to give evidence of more than one offense we have no concern. ( The State v. Stevens, 56 Kan. 720, 44 P. 992.) The question of its right to do so is not before us. It did give such evidence in this case. At what time, then, should the defendant have exercised his right to compel an election?

In a number of cases the right of the defendant to compel this election at the close of the evidence in behalf of the prosecution and before being called upon to make his defense has been affirmed. (The State v. Schweiter, 27 Kan. 499; The State v. Crimmins, 31 id. 376, 2 P 574.) All the cases cited to us are cases in which the question of the defendant's right to compel an election at that time was alone involved; hence the defendant's right to compel an election at a later time has not yet been determined, so far as we know. In some of the decisions language is used from which the right to compel an election at any time before final submission to the jury might be inferred. (Wash v. The State of Mississippi, 14 S. & M. 120; Mart Womack v. The State, 7 Cold. 508.) In Goodhue v. The People, 94 Ill. 37, the motion to require an election was made at the close of all the evidence. The court held that it should have been sustained, but the holding seems to have been made upon the general doctrine of the right of the defendant to limit the prosecution to a single offense. The question as to the proper time at which the motion for an election should be made was not discussed either by court or counsel. In The State v. Bonsor, 49 Kan. 758, 31 P. 736, the motion for election was made after all the evidence had been introduced. The state made an election. The defendant then moved for the exclusion of all evidence...