State v. Handrub

• Decision Date: 10 March 1923
• Docket Number: 23,513
• Citation: 113 Kan. 12,213 P. 827
• Parties: THE STATE OF KANSAS, Appellee, v. JOHN HANDRUB, Appellant
• Court: Kansas Supreme Court

213 P. 827

113 Kan. 12

THE STATE OF KANSAS, Appellee, v. JOHN HANDRUB, Appellant

No. 23,513

Supreme Court of Kansas

March 10, 1923

Decided January, 1923.

Appeal from Barber district court; GEORGE L. HAY, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. STATUTORY RAPE--Preliminary Examination--Completed Entries in Record of Justice of Peace. Upon a plea in abatement in a trial for a felony the record of a preliminary examination made by the justice of the peace may by leave of court be completed so as to speak the truth by making additional entries therein not inconsistent with the record as previously made.

2. SAME--Preliminary Examination--Nature and Character of Offense Charged. The defendant must take notice from the evidence on the preliminary examination as well as from the complaint and warrant of the nature and character of the offense charged against him, and where the evidence shows two carnal acts committed upon a female under the age of eighteen years, both may be charged in the information although only one act was alleged in the warrant for arrest.

3. SAME -- Negotiations for Settlement -- Settlement No Defense to Crime Charged. After the commission of the offenses charged civil suits to recover damages were brought against the defendant. A settlement was made, and these actions as well as the criminal prosecution instituted were dismissed. Later the present prosecution was begun, and defendant brought other actions against a number of parties to set aside a conveyance made and a mortgage given in the settlement charging that a conspiracy had been formed to extort money and property from him, using the criminal charge against him to effect their wrongful purposes. At the trial the court refused to allow an extended inquiry as to the settlement made subsequent to the commission of the offenses and as to the civil actions which had been brought. Held, the limitations imposed by the court are not grounds for reversal.

4. SAME--Evidence. Objections to several rulings on the admission of testimony examined and held to be without material error.

5. SAME--Instructions. Criticisms of the instructions given the jury are found to be without merit.

6. SAME--Evidence Supports Verdict and Judgment. The evidence examined and held to be sufficient to support the verdict and judgment.

John W. Davis, of Greensburg, and Samuel Griffin, of Medicine Lodge, for the appellant.

Richard J. Hopkins, C. B. Griffith, attorney-general, and Riley W. MacGregor, county attorney, for the appellee; Adrian S. Houck, of Medicine Lodge, of counsel.

Johnston, C. J. Hopkins, J., not sitting.

OPINION

JOHNSTON, C. J.:

John Handrub was convicted upon a charge of statutory rape committed upon Alice Bayliffe, and from the judgment he has taken an appeal.

When he was arrested and brought before the justice bail was fixed at $ 1,000, which defendant refused to give, and the examination was continued to a day certain so that appellant could secure counsel. Another continuance was taken during which counsel was employed by defendant, and by agreement still another continuance of a week was taken. There was testimony to the effect that while defendant was in jail and his counsel absent, attorneys in behalf of the state, some of whom had brought civil actions against him for the infant child, and her father negotiated a settlement with Handrub in which he deeded to Bayliffe and his daughter 320 acres of land and executed to the attorneys a promissory note for $ 6,000, payment of which was secured by a mortgage on other land. It is alleged that this settlement was obtained through threats and intimidations. After the settlement the criminal action was dismissed and also the civil suits that had been brought. The defendant then left the county and went to Solomon, but on May 3, 1920, he was rearrested at the instance of a newly appointed county attorney. A trial was had which resulted in a verdict of guilty on each of the two counts alleged in the information.

Error is assigned on the overruling of a plea in abatement. In the complaint and warrant upon which the preliminary examination was held, it was charged that the offense was committed on June 24, 1918. At the end of the examination the justice of the peace made an incomplete finding stating that an offense had been committed and probable cause shown that the defendant had committed it. The information contained two counts, one charging the commission of an offense on June 24, 1918, and another on July 25, 1918, and the defendant was found guilty on both counts. It is contended by defendant that no preliminary examination was given him on the charge in the second count of the information and therefore his plea in abatement as to that offense should not have been sustained. At the trial the court permitted the justice of the peace to amend his transcript and make the record complete. On that examination proof was offered not only to show that an offense was committed in June, 1918, but also that several criminal acts were committed in July, 1918, continuing up to the last of that month, and this was made to appear in the amended transcript. It was competent for the court to permit the amendment so as to make it speak the truth. (The State v. Geary, 58 Kan. 502, 49 P. 596.) One of the purposes of a preliminary examination is to notify the defendant of the nature and character of the offense for which he is to be tried, and he must take notice from the evidence introduced on the preliminary examination as well as the papers the character of the offenses which he is required to meet. (The State v. Bailey, 32 Kan. 83, 3 P. 769; The State v. Fields, 70 Kan. 391, 78 P. 833; The State v. Pigg, 80 Kan. 481, 103 P. 121.) Under the statute a defendant who has had a preliminary examination upon a criminal charge may be bound over for a different felony where the evidence shows that a different one has been committed. (Crim. Code, § 55; Redmond v. The State, 12 Kan. 172; The State v. Field, supra.)

Here the evidence produced at the examination showed that defendant had committed an offense in July as well as in June, and from the evidence he had abundant notice of the charge in the second count of the information, and the purpose of the preliminary examination in that respect was subserved. No error was committed in overruling the plea in abatement.

Another assignment is that there was error in the ruling restricting the counsel for defendant in making a statement of his defense to the jury at the opening of the trial. He was stating that he expected to prove that Bayliffe and his attorneys, and also the sheriff, had conspired together to extort money and property from defendant by threats of prosecution and intimidations by reason of the charge of rape. The court held that the facts which counsel were relating would not constitute a defense and ruled that a further statement of them should not be made.

Likewise complaint is made that the court excluded testimony offered to show threats and intimidation, by reason of which the deeds, notes and mortgages named were executed by the defendant shortly after his first arrest, and also excluded evidence to show that civil actions had been brought by the defendant to rescind and cancel the deed mortgage and note and to recover damages from the parties alleged to have committed the fraud upon him in case a rescission or cancellation could not be awarded. Objection was also sustained to the admission of the pleadings in the civil actions brought to cancel the obligations given in the settlement. Some other evidence touching the transactions involved in the settlement and the grounds for setting it aside was excluded by the court. We think none of these rulings constitute a basis for a reversal. ...