State v. Learned

• Decision Date: 10 March 1906
• Docket Number: 14,711
• Citation: 73 Kan. 328,85 P. 293
• Parties: THE STATE OF KANSAS v. WILLIAM LEARNED
• Court: Kansas Supreme Court

85 P. 293

73 Kan. 328

THE STATE OF KANSAS v. WILLIAM LEARNED

No. 14,711

Supreme Court of Kansas

March 10, 1906

Decided January, 1906.

Appeal from Stafford district court; JERMAIN W. BRINCKERHOFF, judge.

STATEMENT.

ON the 20th day of April, 1905, the county attorney of Stafford county, Kansas, filed an information in the district court against William Learned and Bertha M. Austin, charging, or attempting to charge, both of the defendants jointly with incest with each other. There were six counts in the information. The first count charged that the offense was committed on the day of July, 1903, the second count on the day of November, 1903, the third count on the day of November, 1903. The fourth and fifth counts charged the offenses as having been committed on the day of February 1904, and subsequently to the 12th day of the month. The sixth count charged that the offense was committed on the day of June, 1904. Each count, after the first, charged that the offense therein alleged was separate and distinct from any offense charged in any other count in the information. At the October, 1905, term of court, the case being called, the county attorney requested the court to discharge Bertha M Austin, for the purpose of using her as a witness in the action, which request was allowed. She was discharged, and the action was abated as to her. Thereupon the defendant Learned, filed his plea in bar to the first five counts of the information, and, as grounds therefor, alleged that prior to the 8th day of February, 1905, an information had been duly filed against him in the district court of Stafford county charging him with the crime of statutory rape against the person of Bertha M. Austin; that on the 8th day of February, 1905, the court having full jurisdiction of the premises, he had been tried by a jury on the charge, and acquitted; that the offense of which he had been acquitted was the same as the offenses set out in counts 1, 2, 3, 4, and 5; and that he should not again be put in jeopardy so far as those counts were concerned. The state filed its answer and admitted the trial and acquittal of Learned as pleaded, but alleged that only one offense was charged in the former action, and that it was not the same offense as charged in counts 1, 2, 3, 4 and 5 in this action; that the former offense of which Learned was acquitted and the five offenses charged in the information in question were not the same in law nor in fact; and that the only matter involved in the former action was whether Learned had sexual intercourse with Bertha M. Austin prior to the 12th day of February, 1904, and subsequently to the 1st day of January, 1904. It was also alleged in the answer and admitted by the defendant that Bertha M. Austin became eighteen years of age on the 12th day of February, 1904. To this answer the defendant filed a general demurrer. On the hearing thereof the court sustained the demurrer, so far as the same related to counts 1, 2 and 3 of the information, abating the action as to those counts, and overruled the same as to counts 4 and 5. The state reserved the question as to the ruling on counts 1, 2, and 3. Thereupon the defendant filed a motion to quash the information as to counts 4, 5, and 6, which was allowed by the court, to which ruling the state excepted and reserved the question, and, being tendered leave to amend the information, elected to stand thereon, and brings the case to this court for review.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL LAW--Incest and Rape are Distinct Offenses. A plea in bar of a prosecution for incest which sets forth that the defendant has been tried for, and acquitted of, the crime of statutory rape upon the same woman, for the same act, is not a good plea.

2. CRIMINAL LAW--Discharge of One Joint Defendant Will Not Avail the Other. Nor, in such a case, is it a good plea in bar or a sufficient ground for quashing the information that the action against the woman who was particeps criminis has, on request of the county attorney, been dismissed and abated as to her for the purpose of making her a witness for the state.

3. CRIMINAL LAW--Incest--Girl under Eighteen. A man may be guilty of incest with a girl under eighteen years of age.

4. CRIMINAL LAW--Information Held Sufficient. A count of an information which charges that at a certain time and place, within the jurisdiction of the court, a man (naming him) and a woman (naming her), he being a married man and the grandfather of the woman, and she being an unmarried woman and being his granddaughter, "did then and there unlawfully, feloniously and incestuously have sexual intercourse with each other" is sufficient, and it is not requisite to allege that they committed adultery, or fornication, with each other.

C. C. Coleman, attorney-general, G. W. Alford, county attorney, and Ray H. Beals, for The State; C. G. Webb, and T. W. Moseley, of counsel.

Henry C. Sluss, and Fairchild & Lewis, for appellee.

SMITH J. All the Justices concurring.

OPINION

SMITH, J.

The distinctive ingredient of the crime of incest is the relationship of the parties, while the distinctive ingredient of the crime of statutory rape is the youthfulness of the female. The evidence necessary to convict of incest would not be sufficient to convict of statutory rape, as there need be no evidence as to the age of the female. On the other hand evidence that would convict of statutory rape would not suffice to convict of incest, as the relationship is wanting. ...