State v. Jones

• Decision Date: 07 March 1970
• Docket Number: No. 45564,45564
• Citation: 204 Kan. 719,466 P.2d 283
• Parties: STATE of Kansas, Appellee, v. Gene JONES, Appellant.
• Court: Kansas Supreme Court

Page 283

466 P.2d 283

204 Kan. 719

STATE of Kansas, Appellee, v. Gene JONES, Appellant.

No. 45564.

Supreme Court of Kansas.

March 7, 1970.

Rehearing Denied April 2, 1970.

Syllabus by the Court

1. The record in a criminal action on appeal from the defendant's conviction of statutory rape is reviewed, and it is held: (a) There was competent evidence to sustain the jury's finding the offense was committed in Ford County; (b) the amended information was not so indefinite concerning the time alleged as to deny the defendant an adequate opportunity to prepare his defense; (c) the trial court did not err in the admission of evidence; (d) there was sufficient competent evidence to establish the elements of the offense; and (e) the trial judge was not guilty of misconduct in the presence of the jury.

2. Under K.S.A. 62-401 offenses committed against the laws of this state shall be punished in the county in which the offense is committed, except as may be otherwise provided by law.

3. Under K.S.A. 62-401 the venue of an offense is jurisdictional, and it must be proved to establish the jurisdiction of the court.

4. Where a defendant in a criminal action is not misled or prejudiced in making his defense by the allegation that the offense occurred 'on or about or between the 6th day of April 1968, and the 12th day of April, 1968,' a conviction may properly follow upon sufficient proof of the commission of the offense at any time within the dates alleged.

5. Under K.S.A. 60-417 a child seven years of age is not disqualified to be a witness if the trial judge finds she is capable of expressing herself concerning the matter so as to be understood by the judge and the jury, and is capable of understanding the duty of a witness to tell the truth.

6. Whether leading questions should be permitted in conducting the examination of a witness in any particular case rests in a large measure in the discretion of the trial court.

7. The credibility of a child's testimony and its weight are questions to be determined by the jury.

8. Under Article 4 of the new code of civil procedure (See K.S.A. 60-402) the rules of evidence in this jurisdiction have been codified and govern in all cases notwithstanding the prior case law which might be inconsistent with the statute.

9. Under K.S.A. 60-460(a) hearsay evidence is admissible in the trial of a criminal action if it is a statement previously made by a person who is present at the hearing and available for cross-examination with respect to the statement and its subject matter, provided the statement would be admissible if made by the declarant while testifying as a witness.

10. The purpose of a trial in a criminal case is to ascertain the truth of the matters charged against the defendant, and it is a part of the duty of the trial judge to see that this end is attained, even though in accomplishing the full development of the truth it may become necessary for him to encourage a child to testify.

11. Where the trial judge deems it necessary to encourage a child to testify as a witness he must exercise great care to prevent giving the jury the impression that he is biased against the defendant, and he must not forget the function of a judge and assume that of an advocate.

12. A trial judge should exercise great care and caution in the presence of the jury to say nothing within the hearing of the jury which would give it any indication concerning what he thought about the credibility of a witness.

Ken W. Strobel, Dodge City, argued the cause, and on the brief for appellant.

David L. Patton, County Atty., argued the cause, and Kent Frizzell, Atty. Gen., with him on the brief for appellee.

SCHROEDER, Justice:

This is a direct appeal by the defendant in a criminal action resulting from a conviction of statutory rape in violation of K.S.A. 21-424.

Various trial errors are asserted challenging the trial court's jurisdiction, the validity of the information and the admission of evidence.

The defendant Gene Jones (appellant) was originally charged in a complaint which alleged the commission of the offense of statutory rape 'on or about the 12th day of April, 1968.' Thereafter a preliminary hearing was conducted on the 16th day of May, 1968. The defendant appeared with court-appointed counsel.

Following the preliminary hearing an original information was filed alleging the offense occurred 'on or about the 12th day of April, 1968.'

On the morning of the 10th day of June, 1968, subpoenaes were issued by the defendant to three witnesses for the purpose of establishing an alibi for the date of April 12, 1968. About four hours after the issuance of these subpoenaes the state filed an amended information charging that the offense occurred 'on or about or between the 6th day of April, 1968, and the 12th day of April, 1968.' The original date set for trial was June 14, 1968.

Thereupon the defendant moved for and obtained a continuance of the trial to the September term of court. He was formally arraigned on October 15, 1968, on the amended information and a jury was impaneled to hear the case. On the following day the case was submitted to the jury and it returned a verdict of guilty as charged in the amended information.

Starlette Armentrout, the alleged victim, was the seven year old daughter of Karen Gay Jones. At the time in question she lived with her mother and the defendant and four sisters and one brother in the city of Bucklin, Kansas. Starlette had one other sister who was a patient in the Parsons State Hospital in Parsons, Kansas. Karen Jones had been married to Conrad Armentrout who was the father of all of the children. This marriage ended in divorce with the custody of all children going to the mother.

In the month of August, 1967, Starlette's mother met the defendant and at the end of September, 1967, the defendant began living with the family, although he and Starlette's mother did not enter into a formal marriage ceremony until the 20th day of April, 1968.

The family lived in Bucklin, Ford County, Kansas, where the defendant was employed by Albert Brau as a well driller. Starlette attended public school in Bucklin and was in the second grade.

On the 12th day of April, 1968, Starlette was admitted to the Greensburg, Kansas, hospital with severe bleeding from her vagina. She remained hospitalized for almost one month. Upon her release from the hospital, she, at the direction of the juvenile court, went to live with a foster family in Greensburg, Kansas.

The alleged crime was brought to light through a rather complex series of events. Starlette's maternal grandmother, Mrs. Archie Thompson, lived about one block from the home of Starlette in the city of Bucklin. The grandmother observed that Starlette had missed school on Monday, April 8, 1968, but attended school the remainder of the week. It was not until approximately 8:00 o'clock on the evening on Good Friday, April 12, 1968, that she was taken to the hospital in Greensburg with severe hemorrhaging from her vagina. Upon examination by Dr. Bradley later in the evening, the defendant and Starlette's mother were told that Starlette had been molested. The doctor was told by Starlette's mother that the injury had been received by a fall on the stairs at home, and upon first examination the doctor had little reason to suspect anything else.

Throughout the trial Starlette's mother testified to nothing which would implicate the defendant in the crime. Starlette who also testified was a most reluctant witness.

On the 17th day of April, 1968, information first came to light which eventually led to the defendant's prosecution. On that the Mrs. Thompson visited Starlette in the hospital and questioned her. In response to her grandmother's questioning as to what had actually happened to put her in the hospital, the grandmother testified:

'She was very upset. She began to kind of cry, and she said, 'My daddy took me out and hurt me.' And I said, 'What did he do?' And she said, 'Well, he put something down there.' I said, 'What do you mean?' And she said, 'You know what I mean.' And she became more and more upset. And I said, 'Where did he take you?' And she said, 'It was in the car out in the country."

Dr. J. R. Bradley, the examining physician, testified he inquired of the mother when Starlette was brought to the hospital how the injury happened. He had observed the child had a tear in her vagina. The mother told him the child had fallen on a stair and this is the way it happened. He testified the little girl seemed to agree with her mother-that she had fallen on the stair.

When treatment for what appeared to be an external injury did not stop the bleeding, a more detailed examination was given and the injury was found quite severe. She was bleeding from numerous areas back up into the vagina, and the vagina appeared to be abnormally distended. The doctor felt a stair could not possibly have caused the type of tear and injury that this little girl had. He said it had to be something very large forced into the vagina, something rather pliable and something that could tear rather than cut.

Actually, when the injury was inflicted is one of the primary points of contention in this case.

At the preliminary hearing Dr. Bradley testified he thought the injury occurred within two hours prior to his examination, which would made the occurrence on the 12th day of April, 1968. Upon examination at the trial, however, Dr. Bradley testified it was entirely possible the injury could have been older than what he suspected. He explained this by saying there would be a clotting of the blood right in the area where the tears would have occurred which would have shut off this bleeding; that the vagina will hold clots for a period of time actually. He further said it was possible the child was injured approximately five or six days prior to the 12th.

Evidence elicited by leading questions put to Starlette upon her examination...