State v. Miller
| Decision Date | 11 March 1905 |
| Docket Number | 14,277 |
| Citation | 71 Kan. 200,80 P. 51 |
| Parties | THE STATE OF KANSAS v. PHILLIP MILLER |
| Court | Kansas Supreme Court |
Decided January, 1905.
Appeal from Barton district court; JERMAIN W. BRINCKERHOFF, judge.
Judgment reversed and cause remanded.
SYLLABUS BY THE COURT.
1. RAPE--Testimony of Prosecutrix. In a prosecution for statutory rape, where the prosecutrix testified to intercourse with defendant, it was competent for her to testify that conception followed, that in due time a child was born, and that defendant was the father of the child.
2. PRACTICE, SUPREME COURT--Abuse of Discretion. How far leading questions are essential to the ends of justice must be left largely to the sound discretion of the trial court, and, unless there has been a clear abuse of such discretion, a reviewing court may not interfere.
3. RAPE--Proof of Age of Prosecutrix. It was competent for the prosecuting witness to testify as to her age although her parents were present and gave testimony with respect to that fact.
4. RAPE--Entry in Family Record Improperly Admitted. An entry in a family record of the age of a child, made by, or at the instance of, her father, is not admissible in evidence where he is alive and is a witness in the case.
C. C. Coleman, attorney-general, Jay F. Close, assistant attorney-general, and James W. Clark, for The State; Russell & Russell, of counsel.
Osmond & Cole, and D. A. Banta, for appellant.
OPINION
Phillip Miller was convicted of the offense of rape, committed upon Mollie Neidens, a girl under the age of eighteen years. In his appeal he complains that Mollie was permitted to testify as to the birth and parentage of the child, the fruit of the illicit relation. Having testified to the intercourse, it was competent for her to state that conception followed, and that the defendant was the father of the child so begotten. ( The State v. Walke, 69 Kan. 183, 76 P. 408.)
There is complaint that leading questions were allowed in the examination of the prosecuting witness. This objection, if well-founded, is hardly available, as the defendant has not pointed out to us the objectionable questions. The youth of the prosecutrix, her reluctance to testify, as well as her unfamiliarity with the English language, warranted considerable latitude in the allowance of leading questions. How far leading questions are essential to the ends of justice must be left largely to the sound discretion of the trial court, and unless there has been a clear abuse of discretion an appellate court may not interfere. In this instance we cannot say that there was an abuse of discretion.
Complaint is made that the prosecuting witness was permitted to testify as to her age, when her parents were both present in court and gave testimony with respect to that fact. Although the testimony of the father and mother with respect to the age of a person may be stronger, and entitled to greater weight, it is nevertheless well settled that one may testify as to his own age, and such force will be given to the testimony as the court or jury trying the case may think it is entitled to receive. (The State v. McClain, 49 Kan. 730, 31 P. 790; Hill v. Eldridge, 126 Mass. 234; State v. Cain, 9 W.Va. 559; Morrell v. Morgan, 65 Cal. 575, 4 P. 580; Central Railroad v. Coggin, 73 Ga. 689; State v. Best, 108 N.C. 747, 12 S.E. 907; 20 Cent. Dig. c. 1692.)
To show the age of the prosecutrix there was received in evidence a translation of a copy of a parish record in Russia. It purported to give the ages of the members of the Neidens family, and other matters of family history. The extract from the record was made by the pastor just before the family left Russia. It was made at the instance of John Neidens, the father of Mollie, and in his presence. The body of the extract was written in German, and the attached certificate made by the pastor was in Latin. So much of it as related to Mollie's age was received in evidence, and translated to the jury. The document was not certified, nor authenticated in such a way as to make it receivable as an official record. It was not offered or admitted, however, as a copy of the parish record, but was received as a family record. Was it admissible as a matter of pedigree, or family history? It is argued that it was not the declaration of the Russian clergyman who made the document, but that, as it was made at the request and in the presence of Mr. Neidens, it was in fact his entry and his declaration. If it be granted that it was his own act, still the entry and declaration were only secondary evidence and are governed by the rules for the admission of such evidence. This class of evidence is admitted under certain restrictions because of necessity, and the improbability of the evidence's being false. On the ground of necessity it is received because the facts as to pedigree and relationship cannot be shown by living witnesses after the lapse of many years, and, if family reputation were not admissible, in many cases the real facts could not be established. The improbability of falsehood is that at the time the entries or statements were made those who made them were acquainted with the facts; they had no reason to distort them, and if they had their falsity could easily have been detected and corrected at that time. In the admission of such entries or declarations there are limitations as to who may make them, and, also, as to the character of the declarations. Judge Elliott classifies the limitations as to the declarant as follows:
"(1) The declarant must be dead; (2) the declarant must be a legal relative; (3) there must be no desire actuating the declarant to make a false statement." (1 Ell. Ev. § 364.)
He makes the following classification as to the declaration:
(1...
To continue reading
Request your trial
-
Harris v. Hart
...2 Jones on Evidence, sec. 303; 2 Wigmore on Evidence, sec. 1493; 4 Chamberlayne on Modern Law of Evidence, sec. 2929; State v. Miller, 71 Kan. 200, 80 P. 51, 6 Ann. Cas. 58; People v. Ratz, 115 Cal. 132, 46 P. 915; Central R. Co. v. Coggin, 73 Ga. 689; Comm. v. Stevenson, 142 Mass. 466, 8 N......
-
Grayson v. Durant
...holding of the court has been quoted with approval in Malone v. Alderdice and Phillips et al. v. Byrd, supra. In State v. Miller, 71 Kan. 200, 80 P. 51, 6 Ann. Cas. 132, it was said by the Supreme Court of Kansas: "To show the age of the prosecutrix, there was received in evidence a transla......
-
Commonwealth v. Joyce
...its admissibility, but has to do solely with the force and effect to be attached to it by the triers of the facts. See State v. Miller, 71 Kan. 200, 80 P. 51, 6 Ann. Cas. 58. This is only an application of the general rule that as between living witnesses one will not be excluded merely bec......
-
State v. Schut
...has been cited us holding directly that a witness may so testify, analogous cases are numerous. For example, it was held in State v. Miller, 71 Kan. 200, 80 Pac. 51, that the prosecuting witness was competent to testify as to her own age, notwithstanding both of her parents were present and......