State v. Gereke
| Decision Date | 10 November 1906 |
| Docket Number | 14,833 |
| Citation | 86 P. 160,74 Kan. 196 |
| Parties | THE STATE OF KANSAS v. JOHN GEREKE |
| Court | Kansas Supreme Court |
Decided June 9, 1906.
January 1906.
Appeal from Stafford district court; JERMAIN W. BRINCKERHOFF, judge. First opinion filed June 9, 1906. Affirmed. Rehearing allowed July 7, 1906. Second
Judgment affirmed.
SYLLABUS BY THE COURT.
1. JURY AND JURORS--Impaneling--Discharge. In criminal as well as in civil cases the rule obtains that "it is not a substantial error for the district court to discharge a juror during the time the jury are being impaneled, although the juror may be discharged for an insufficient reason, where an unexceptionable jury is afterward obtained and where the party complaining has not exhausted his peremptory challenges." (Stout v. Hyatt, 13 Kan. 232.)
2. JURY AND JURORS--Selection from the Assessment Roll. The statute requiring the jury-list to be selected from the assessment roll has reference to the assessment roll of real estate as well as to that of personal property, and in order for a person to be eligible for jury service it is not necessary that his name shall be upon the personal-property roll.
3. STATUTORY RAPE--Cross-examination of Prosecutrix. In a prosecution for statutory rape, where evidence of the birth of a child has been introduced in corroboration of the story of the complaining witness, it is not necessarily error to sustain objections to questions asked of her on cross-examination the only purpose of which is to show that at about the time of the alleged commission of the offense charged she had been in company with other men. (See, post, p. 200.)
4. STATUTORY RAPE--Circumstantial Evidence in Corroboration--Instruction. Where in a criminal prosecution the state relies upon direct evidence of the offense charged, and circumstantial evidence is introduced only for the purpose of corroboration, it is not error to refuse to give an instruction telling the jury what would be necessary to warrant a conviction on circumstantial evidence.
C. C. Coleman, attorney-general, G. W. Alford, county attorney, and Ray H. Beals, for The State.
Paul R. Nagle, and T. W. Moseley, for appellant.
OPINION
John Gereke was convicted upon a charge of statutory rape, and appeals. In the course of the impaneling of the jury, and, so far at least as the record shows, before the defendant had exercised any of his peremptory challenges, the court excused a talesman who had been examined only as to his residence, refusing to allow any inquiry as to his qualifications except in that connection. The defendant claims that the evidence failed to show any incompetence on the part of the juror and that it was error for the court to dismiss him. Whether or not the juror on the facts shown was competent to serve, no error was committed of which the defendant can complain, by reason of the rule thus stated in Stout v. Hyatt, 13 Kan. 232:
"It is not a substantial error for the district court to discharge a juror during the time the jury are being impaneled, although the juror may be discharged for an insufficient reason, where an unexceptionable jury is afterward obtained and where the party complaining has not exhausted his peremptory challenges." (Syllabus.)
While this rule may not have been heretofore formally announced by this court except in civil cases, Stout v. Hyatt has been cited with approval in criminal cases upon the subject of the court's power to excuse jurors. (See The State v. Miller, 29 Kan. 43; The State v. Sorter, 52 Kan. 531, 34 P. 1036.) The rule is a sound one and there is no reason for limiting its operation.
A second complaint is made of the retention of a juror who was challenged by the defendant upon the ground that his name did not appear on the personal-property assessment roll. There was no showing that the juror's name was not on the real-estate assessment roll. The statute (Gen. Stat. 1901 § 3796) requires the original jury-list to be selected from the "assessment roll" of the preceding year. The expression "the last assessment rolls of the several township and city assessors of the county" (Gen. Stat. 1901, § 1867) has been construed to include both the personal-property and real-estate assessment rolls. (The State, ex rel., v. Comm'rs of Rawlins Co., 44 Kan. 528, 24 P. 955.) In The State v. Reed, 53 Kan. 767, 37 P. 174, 42 Am. St. Rep. 322, it was strongly intimated that the words "assessment roll," as used in the jury law, should by the same reasoning be held not to refer exclusively to the...
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State v. Wilkins
...give the instruction on circumstantial evidence has been raised no reversible error has been established. For examples see State v. Gereke, 74 Kan. 196, 86 P. 160, State v. Logan, 203 Kan. 864, 866, 457 P.2d 31, and State v. Skinner, 210 Kan. 354, 362, 503 P.2d The difficulty in applying su......
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...upon circumstantial evidence. Circumstantial evidence was merely incidental to the direct evidence of the co-defendant. See State v. Gereke, 74 Kan. 196, 86 P. 160, 87 P. 759.' 153 Kan. at page 751, 114 P.2d at page Likewise, this case was not entirely one of circumstantial evidence. The co......
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