State v. Kelley

• Court: Kansas Supreme Court
• Writing for the Court: HARVEY, J.:
• Citation: State v. Kelley, 125 Kan. 805, 265 P. 1109 (Kan. 1928)
• Decision Date: 07 April 1928
• Docket Number: 28,187
• Parties: THE STATE OF KANSAS, Appellee, v. CHARLES KELLEY, Appellant

265 P. 1109

125 Kan. 805

THE STATE OF KANSAS, Appellee, v. CHARLES KELLEY, Appellant

No. 28,187

Supreme Court of Kansas

April 7, 1928

Decided January, 1928

Appeal from Shawnee district court, division No. 2; GEORGE H WHITCOMB, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAPE--Attempt to Commit Rape--Information. An information charging an attempt to rape examined and held not fatally defective.

2. CRIMINAL LAW--Competency of Evidence--Letters Unlawfully Obtained. Evidence, otherwise competent, is not rendered incompetent by the fact that it was unlawfully obtained.

3. RAPE--Degrees of Offense--Simple Assault. Simple assault is not a lesser degree of the offense of rape, or of attempt to rape, as defined by R. S. 21-101, 21-424.

Dennis Madden, of Topeka, for the appellant.

William A. Smith, attorney-general, Roland Boynton, assistant attorney-general, Paul H. Heinz, county attorney, Edward Rooney and Ralph W. Oman, assistant county attorneys, for the appellee.

OPINION

HARVEY, J.:

Charles Kelley was found guilty of attempt to rape. He has appealed and contends that the information was fatally defective, that certain evidence was improperly received, and that there was error in the instructions given.

The information was drawn, in part, under R. S. 21-101, which provides:

"Every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act toward the commission of such offense but shall fail in the perpetration thereof . . ."

The information charged that defendant did "attempt to rape . . . by forcibly assaulting and attempting to ravish" a named female person who was more than eighteen years of age. It is contended that the information does not set forth the "act toward the commission of the offense" which the defendant did. Reliance is had on State v Frazier, 53 Kan. 87, where an information was held fatally defective for failure to "set forth any physical act or acts done toward the commission of the offense." But there the explanatory part of the charge was a mere repetition of the principal charge of attempt. Here there is a specific charge that the attempt to rape was accomplished by a forcible assault. It is true these words are general and might include any one or more specific acts, and the information would have more nearly complied with the statute if one or more of them had been specifically described. The term "forcibly assault" is, however, necessarily descriptive of an act or of acts. While the information is defective in that it describes the acts in general terms instead of describing them specifically, we do not regard that fact in this case as being prejudicial to the defendant. Here there had been a preliminary examination, at which the complaining witness had testified. Defendant, therefore, knew the specific acts complained of. We do not mean to refer to the preliminary examination for the purpose of testing the sufficiency of the information, but in determining whether or not the defect of the information was prejudicial to defendant we can, of...