State v. Glave

• Decision Date: 06 May 1893
• Citation: 51 Kan. 330,33 P. 8
• Parties: THE STATE OF KANSAS v. OTTO GLAVE
• Court: Kansas Supreme Court

33 P. 8

51 Kan. 330

THE STATE OF KANSAS v. OTTO GLAVE

Supreme Court of Kansas

May 6, 1893

Appeal from Osborne District Court.

PROSECUTION for rape. The opinion states the case.

Judgment affirmed.

Mitchell & Robertson, and H. G. Larimer, for appellant:

The verdict in this case is contrary to the evidence, and wholly unsupported by any evidence, either direct or circumstantial. The court erred in not sustaining the demurrer to the evidence, and in refusing to instruct the jury to find a verdict in favor of the defendant. The court should have sustained the demurrer to the evidence, for the reason that there is not sufficient evidence that the injured witness Mary E. Cook, was under the age of 18 years at the time the alleged crime was committed.

The court erred in allowing the jury to be sworn and a portion of the state's evidence to be introduced before an arraignment was called for, and in not requiring a plea to be entered. In The State v. Wilson, 42 Kan. 597, it is held that the record should show affirmatively that the accused was arraigned and required to plead to the information. See Crim Code, § 161; Hoskins v. The People, 25 Am. Rep. 433; Powell v. United States, 1 Morris, 17; Douglass v. The State 3 Wis. 820; McJunkins v. The State, 10 Ind. 140; Rockey v. The State, 19 id. 225; McKinney v. The People, 2 Gilman, (Ill.) 540; The State v. Barnes, 59 Mo. 154; Lawrence v. Commonwealth, 30 Gratt. 845; Sperry v. Commonwealth, 33 Am. Dec. 261; People v. Corbett, 28 Cal. 328.

The court erred in not granting a new trial on account of the improper remarks of E. F. Robinson and M. E. Smith, counsel for the state, to the jury. Such remarks were in direct violation of the statute, (Crim. Code, § 215,) and are reversible error. The State v. Balch, 31 Kan. 465; Winter v. Sass, 19 id. 556; City of Topeka v. Myers, 34 id. 501; The State v. Skinner, 34 id. 256; The State v. Comstock, 20 id. 650; The State v. Brownfield, 15 Mo.App. 593.

The defendant in this case did not testify except as to a preliminary matter, for the purpose solely of letting in the testimony of the witness F. C. Hasemeyer. His testimony was to the court and not to the jury. Besides, there was not a question asked by the state on cross-examination. No attempt was made by the state to contradict, discredit or impeach the defendant, and certainly he is entitled to the constitutional and statutory safeguard thrown around defendants, wherein their neglect or refusal to testify shall not raise any presumption of guilt; nor shall the circumstance be referred to by any attorney prosecuting in the case.

John T. Little, attorney general, and M. E. Smith, county attorney, for The State:

In this state, a failure to arraign the defendant, charged with any offense not capital, and have a formal plea of "not guilty" entered, is not such an omission or error as will entitle the defendant to a new trial, or to an arrest of judgment, when it appears that the defendant was present in person and by counsel, announced himself ready for trial upon the information, went to trial before a jury regularly impaneled and sworn, and submitted the question of guilt to their determination. The State v. Lewis, 10 Kan. 157; The State v. Cassady, 12 id. 551; Crim. Code, § § 161, 293.

The venue was sufficiently proven to be in Osborne county.

The improper remarks complained of by defendant are such as are authorized when the defendant voluntarily takes the witness stand in his own behalf, and changes his status for the time being from defendant to witness; and it is perfectly proper for counsel for the state to comment on the evidence that he did or did not offer. Defendant was seeking to impeach the witness J. L. Bacon, and he became a witness for all purposes of the case, and it is immaterial whether he is called upon to testify to one fact or a multitude of facts in the case. It was to the jury as much as to the court. "He assumes the character of a witness, and is entitled to the same privileges and subject to the same tests, and to be contradicted, discredited, or impeached, the same as any other witness." The State v. Pfefferle, 36 Kan. 90; The State v. Probasco, 46 id. 310.

The court very properly overruled the defendant's demurrer to the evidence. The age of Mary E. Cook was sufficiently proven to be under 18 years, even at the time of the trial.

ALLEN, J. All the Justices concurring.

OPINION

ALLEN, J.:

The defendant, Otto Glave, was convicted of the crime of rape, committed on Mary E. Cook, a child under the age of 18 years.

The first error alleged by the appellant is, that the defendant was not arraigned, or called on to plead to the information before the trial. The record contains this statement: "The parties announced themselves ready for trial," after having recited that "the defendant was present in person and with his attorneys." After the first witness had been sworn, and had testified with reference to some unimportant matters, the attention of the court and counsel was called to the fact that the defendant had not been formally arraigned, and counsel for the defendant were asked whether they would waive formal arraignment, to which one of the counsel for the defendant replied: "Yes, I guess we will waive at this time." Thereafter, the trial proceeded without objection on the part of the defendant. Under the former decisions of this court, the failure to arraign the defendant, and to require him to plead before the commencement of the trial, under the facts above stated, is not such error as will require a reversal of the judgment. (The State v. Lewis, 10 Kan. 157; The State v. Cassady, 12 id. 550.) In the case of The State v. Wilson, 42 Kan. 587, 22 P. 622, cited by counsel for appellant, the record failed to show that the defendant announced himself ready for trial, or consented to go to trial, and, after the jury was sworn, he made a motion to be discharged from custody because of want of service of a copy of the information, and because he had not been arraigned and required to plead. We do not think the decision in that case in conflict with the earlier cases cited and the conclusion reached in this.

Various objections were made to the introduction of testimony, and exceptions were preserved to the rulings of the court thereon. Motions were also made to strike out the testimony of certain witnesses. It is unnecessary to comment on them separately. We have examined the record and find no substantial error in it in regard to these matters. The defendant himself took the witness stand and testified with reference to his having heard conversations between Lafe Bacon, a...