State v. Herbert
| Decision Date | 05 October 1901 |
| Docket Number | 11,814 |
| Citation | 66 P. 235,63 Kan. 516 |
| Parties | THE STATE OF KANSAS v. WILLIAM HERBERT |
| Court | Kansas Supreme Court |
Decided July, 1901.
Appeal from Douglas district court; SAMUEL A. RIGGS, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. CRIMINAL LAW -- Recognition by Voice. Where a crime was committed in the darkness, a witness who did not distinguish the features, but did hear the voice of the one who committed the offense, may testify that the defendant was the offender, and that he recognized him by his voice.
2. CRIMINAL LAW -- Privileged Communications. Where statements are made to an attorney in regard to pending litigation, when no employment as an attorney is suggested or anticipated, and the relation of attorney and client does not exist, the communications are not privileged.
3. CRIMINAL LAW -- Burglarious "Breaking." The opening of a window closed only with a wire screen upon which the window sash rests is sufficient to constitute a burglarious "breaking."
W. B Brownell, county attorney, and Louis C. Poehler, for The State.
W. W. Nevison, Robt. McWilliams, and Barker & Summerfield, for appellant.
William Herbert was prosecuted on a charge of burglariously entering the residence of Simon Gilson in the night-time with the intent to ravish Helen Louisa Gilson. He was convicted, and now insists that the evidence does not sufficiently connect him with the crime nor sustain the conviction.
The testimony tends to show that Miss Gilson and her mother were sleeping in separate rooms in the second story of the house; that about midnight Miss Gilson was awakened, and in the moonlight saw a man at her bedside; that he tried to turn down the bedclothes and made an assault upon her; that she resisted vigorously, when he struck her with a club, which stunned and severely wounded her; that the mother, hearing the struggle, came to the assistance of her daughter; that the burglar struck the mother several times, breaking her cheek-bone and some of her fingers, and then renewed the assault upon the daughter, who, although seriously wounded, with the assistance of her mother, repelled the attack and defeated his purpose. The burglar then demanded money, and, having secured a pocketbook and a watch, he left the house. While he was in the house there was no artificial light, and for that reason neither mother nor daughter observed his features, and they were unable to say whether he was a white or black man. They testified, however, that they recognized his form and clothes, and also identified him as the one who was in the room by his voice. This testimony, in connection with statements made by him after the offense was committed, and of his presence in the vicinity of the Gilson home on that night, are sufficient to uphold the verdict.
Considerable complaint is made of the identifying testimony given by the witnesses named. Miss Gilson testified, over objection, that the defendant was the man who made the assault. In view of her means of information, which have already been stated, the testimony was competent. She was subject to cross-examination as to her means of knowledge, and the weight to be given her testimony was for the jury. The light which came through the windows was sufficient to enable her to see the figure movements and clothing of the burglar; and a still better means of identification was his voice, which she subsequently recognized. This is the principal and most reliable identifying evidence of crimes committed in the darkness or on persons who are blind; and in such cases the rule is that a witness may testify that he recognized the accused by his voice. Here the matter of identity did not rest on the voice alone, but was founded on other personal appearances and peculiarities; and the circumstances and character of the assault would, in the nature of things, make a lasting impression on her, and give her a clear conception of identity. ...
To continue reading
Request your trial
-
State v. Galloway, 55370
...distinguishing characteristics (State v. Hill, 193 Kan. 512, 394 P.2d 106; State v. Nixon, 111 Kan. 601, 207 Pac. 854; State v. Herbert, 63 Kan. 516, 66 Pac. 235), including the extrajudicial identification of an accused in a police lineup (Peterson v. State, 198 Kan. 26, 422 P.2d 567; Stat......
-
Sorenson v. United States
...hinges (State v. Conners, 95 Iowa, 485, 64 N.W. 295), or by the raising of a window sash (Frank v. State, 39 Miss. 705; State v. Herbert, 63 Kan. 516, 66 P. 235). description of the interior of the premises and the character and location of the furniture and fixtures given by the assistant ......
-
State v. Childs
...other distinguishing characteristics (State v. Hill, 193 Kan. 512, 394 P.2d 106; State v. Nixon, 111 Kan. 601, 207 P. 854; State v. Herbert, 63 Kan. 516, 66 P. 235), including the extrajudicial identification of an accused in a police lineup (Peterson v. State, 198 Kan. 26, 422 P.2d 567; St......
-
State v. Wade, 45398
...726; State v. Barger, 148 Kan. 590, 83 P.2d 648; State v. Wright, 139 Kan. 14, 29 P.2d 1099.) A factually analogous case is State v. Herbert, 63 Kan. 516, 66 P. 235, where the offenses charged were burglary and attempted rape. Though the room was dark, the victim identified the defendant by......