State v. McLemore

• Decision Date: 10 February 1917
• Docket Number: 20660
• Citation: 164 P. 161,99 Kan. 777
• Parties: STATE v. MCLEMORE.
• Court: Kansas Supreme Court

164 P. 161

99 Kan. 777

STATE v. MCLEMORE.

No. 20660

Supreme Court of Kansas

February 10, 1917

Syllabus

In a prosecution for rape, it is incompetent for the party to whom the assailed made complaint to give in evidence the name of the assailant; but where there is no question concerning the identity of the party making the assault, and where there is no question that he was present at the time and place of the alleged assault, no reversible error is committed where the name of the assailant is thus given.

Evidence should not be admitted to contradict a statement of a witness elicited on cross–examination, on an immaterial, collateral matter; but where such evidence is admitted, a judgment will not be reversed where the evidence could not have produced any prejudicial effect on the jury.

In a prosecution for rape, on the cross–examination of the person assaulted, it is proper to show that she contracted with attorneys to bring an action for damages for the alleged assault; but the refusal of the court to permit such a cross–examination will not cause a reversal of the judgment, where it does not appear that any harm was done by its exclusion.

It is not error to fail to instruct the jury concerning assault with intent to commit rape, where the evidence to prove the offense shows a completed offense at a certain time and place, and the statements of counsel and the evidence of the witnesses are all directed to that time and place, although there may be other incidental evidence which proves acts which tend to show that the accused attempted an assault at another time and place.

Appeal from District Court, Bourbon County.

B. A. McLemore was convicted of rape, and he appeals. Affirmed.

A. M. Keene and Connolly & Connolly, all of Ft. Scott, for appellant.

S. M. Brewster, Atty. Gen., and J. G. Sheppard, of Ft. Scott, for the State.

OPINION

MARSHALL, J.

The defendant appeals from a conviction of rape.

1. The charge was that the defendant did forcibly rape and ravish Maude Morrison, she being then a woman between 35 and 36 years of age. There was evidence that tended to show that a half hour after the offense was committed, Maude Morrison met her husband. He was a witness for the prosecution, and testified as follows:

"Q. Did your wife make complaint to you of Dr. McLemore’s actions, in which she told you what his actions were, on October 28, 1915?

Mr. Keene: To which the defendant objects as incompetent, irrelevant, and immaterial and prejudicial.

The Court: He may answer.

A. Yes, sir."

After that evidence was introduced, the defendant asked that it be stricken out. The court refused to strike it out. The defendant insists that the witness should not have been permitted to give the name of the person committing the offense. In State v. Daugherty, 63 Kan. 473, 65 P. 695, this court said:

"In prosecutions for the crime of rape, neither the name of the assailant nor the details of the transaction, as given by the assailed, may be repeated in evidence by the party to whom she made timely complaint." Syl. par. 7.

In State v. Hoskinson, 78 Kan. 183, 188, 96 P. 138, 140, this court said:

"Some courts have admitted a full relation of the details told by the prosecutrix, but the weight of authority admits only the fact that a complaint was made; it is not permissible to relate the name of the person of whom she complained. * * * A probable exception to this rule is where the complaint was made in such immediate relation with and sequence to the act complained of as to be part of the res gestæ, but that has no application here."

It must be noticed that the authorities are not unanimous in excluding the name of the assailant. The purpose of the rule is to permit the fact to be shown that the injured party did make complaint, but to exclude all hearsay evidence of every other fact necessary to prove the crime. Where the identity of the assailant is unquestioned, and where the defense is that there was no rape either because there was no intercourse, or, if there was intercourse, that the woman consented thereto, it is not easy to see what harm is done by giving the name of the assailant in connection with the fact that complaint was made. In the present case, there was no question about the identity of the assailant if a rape had been committed. The defendant admitted being at the place where the crime was charged to have been committed at the time when Mrs. Morrison testified it was committed, but he denied having intercourse with her. One of the propositions argued by the defendant on this appeal is that if the evidence shows that he did have intercourse with the complainant, the evidence shows that she consented to that intercourse. On the trial, Mrs. Morrison testified positively that it was the defendant who assaulted her. The husband’s testimony concerning the name of his wife’s assailant did not add one particle of evidence to show that a rape had been committed, or, if the other evidence established that one had been committed, that the defendant was the guilty party. Section 293 of the Code of Criminal Procedure (Gen. St. 1909, § 6867) provides that:

"On an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties."

That evidence was incompetent, but, under the circumstances surrounding this case, it cannot be said that the introduction of that evidence affected any substantial right of the defendant. Its admission was not reversible error.

2. The state sought to prove that the defendant was intoxicated at the time he was charged to have committed this offense. Mrs. Morrison testified that she could smell intoxicating liquor on his breath. On cross-examination, the defendant testified as follows:

"Q. I am asking you if you haven’t been in the habit of frequently getting partially intoxicated? A. No, sir; never in my life was I intoxicated. Q. Sir? A. Never in my life have I been intoxicated. Q. You have never been drunk or half drunk? A. I don’t know what you call half drunk. Q. I mean under the influence of liquor so people would know it and understand it by seeing you. A. I was never drunk, tipsy, or full in my life; never."

James D. Stroud, a witness for the prosecution on rebuttal, testified as follows:

"Q. Now on this date (meaning the time that the state claimed that McLemore was in Stroud’s restaurant, after the alleged crime was committed and after this prosecution was begun) the defendant came in there, what was his condition with reference to being intoxicated or otherwise?

Mr. Keene: Defendant objects as immaterial and not rebuttal.

The Court: He may answer.

Mr. Keene: Exception.

A. Well, I took him to be intoxicated."

The defendant complains of the introduction of this evidence. In State v. Alexander, 89 Kan. 422, 131 P. 139, this court said:

"Evidence should not be admitted to contradict a statement of a witness elicited upon cross-examination upon a purely collateral matter which does not tend to prove or disprove an issue in the case, the contradictory evidence being offered by the party eliciting the statement." Syl. par. 3.

See State v. Sexton, 91 Kan. 171, 136 P. 901.

It is unnecessary to cite other cases. The defendant’s intoxication when he was in Stroud’s restaurant was a matter wholly immaterial; and except as that evidence may have affected the credibility of the defendant as a witness, it could not have produced any effect on the jury. While the evidence was immaterial and inadmissible, its introduction was not sufficient to cause a reversal of the judgment.

3. After laying her complaint before the county attorney, and before she succeeded in getting the county attorney’s office to file a complaint and cause a warrant to be issued for the arrest of the defendant, Mrs. Morrison entered into a contract with other attorneys to bring a suit against the defendant for damages for the assault. On the cross-examination of Mrs. Morrison, the defendant sought to show that she had made such a contract. The court refused to permit that evidence to be introduced. The defendant contends that this was error. In State v. Abbott, 65 Kan. 139, 69 P. 160, this court said:

"For the purpose of impairing his credibility, a witness who gives material testimony may be cross-examined as to his past conduct and character, and as to specific acts which tend to discredit him." Syl. par. 1.

See, also, State v. Pugh, 75 Kan. 792, 796, 90 P. 242, 243.

In the last case cited, the court said:

"The extent permissible in such cases must be left to the discretion of the trial court, whose action will not be disturbed by this court except for

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