State v. Grubb
| Decision Date | 01 July 1895 |
| Citation | 41 P. 951,55 Kan. 678 |
| Parties | THE STATE OF KANSAS v. ELI GRUBB |
| Court | Kansas Supreme Court |
Appeal from Jackson District Court.
ELI GRUBB was convicted of rape, and sentenced to the penitentiary for five years. He appeals. All the material facts are stated in the opinion herein, filed October 5 1895.
Judgment reversed and case remanded.
C. F Hurrell, R. W. Blair, and R. G. Robinson, for appellant.
F. B Dawes, attorney general, and A. E. Crane, county attorney, for The State.
OPINION
At March term, 1895, of the district court of Jackson county the defendant was convicted of the crime of rape upon the person of Anna Bleidissel, a female under the age of 18 years, to wit, the age of 16 years and about 2 months, and he was sentenced to the penitentiary for a term of five years.
I. Anna Bleidissel was not present at the trial, and she gave no testimony by deposition or otherwise. Her father and her mother testified that she was born December 26, 1878. The offense was alleged to have been committed February 17, 1895. Some of the witnesses for the state testified in cross-examination that in their opinion she was 18 years of age or more. Several witnesses called for the defense stated the extent of their acquaintance with Anna, described her as to height, weight, and development, and were then asked their opinions as to her age. On objection made by the state, these witnesses were not permitted to give their several opinions as to her age. This was error. After fully stating, as far as practicable, the means of knowledge and the basis of an opinion as to the age of an absent person, any witness should be allowed to give such opinion. (Lawson, Ex. & Op. Ev. 473; Rogers, Ex. Test. 10; Foltz v. The State, 33 Ind. 215, 217; Benson v. McFadden, 50 id. 431, 433; K. P. Rly. Co. v. Miller, 2 Colo. 442; Morse v. The State, 6 Conn. 9, 13; Porter v. Manufacturing Co., 17 id. 249, 257, 258; The State v. Douglass, 48 Mo.App. 39; Commonwealth v. O'Brien, 134 Mass. 198, 200; Garner v. The State, 28 Tex.App. 561, 562, 13 S.W. 1004; Jones v. The State, 32 Tex. Cr. App. 108; 22 S.W. 149; Weed v. The State, 55 Ala. 13, 15.)
In some of the cases this kind of evidence has been admitted on the same principle that allows the opinions of non-professional witnesses to be given as to the sanity or mental condition of a person, after first stating the facts which have come within their observation. (Baughman v. Baughman, 32 Kan. 538, 543, 4 P. 1003.) The circumstance that Anna's parents had testified to her age did not render the opinion evidence of others incompetent. The jury might not deem the testimony of the parents worthy of credit. There are no degrees of parol evidence. (1 Best Ev. 87.) And it is for the jury to judge what weight shall be given to direct and opinion evidence respectively, both of which are admissible in proof of the same fact.
II. The court, although using the term "carnal knowledge" in the fourth instruction to the jury, did not anywhere define it, but in the fifth seemed to assume that evidence of "actual contact of the sexual organs" was sufficient to warrant a conviction. Proof of actual penetration was necessary, and the jury ought to have been so informed. (Code, Crim. Proc., § 213; The State v Frazier, 54 Kan. 719, 725, 39 P. 819; 2 Bishop, Crim. Law, § 1127.) The evidence tended to show that the defendant and Martin Fish were drunk; that Mrs. Fish had also been drinking, and that...
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State v. Wilson
...such instruction, and none was given on the elements of carnal knowledge. In this, we think, there was error. It was held in State vs. Grubb, 55 Kan. 678, 41 P. 951, Davis vs. State, 43 Tex. 189, that where it became a question of doubt, in a case of rape, as to whether or not penetration w......
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...560; State v. Bernstein, 99 Iowa, 5-10, 68 N. W. 442;Commonwealth v. O'Brien, 134 Mass. 198;De Witt v. Barly, 17 N. Y. 340;State v. Grubb, 55 Kan. 678, 41 Pac. 951;Louisville Railway v. Frawley, 110 Ind. 18, 9 N. E. 594;Monahan v. Roderick, 183 Iowa, 1, 166 N. W. 725;Reininghaus v. Merchant......
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