State v. Moon

• Decision Date: 06 April 1901
• Docket Number: 11,993
• Citation: 64 P. 609,62 Kan. 801
• Parties: THE STATE OF KANSAS v. LEONARD MOON
• Court: Kansas Supreme Court

64 P. 609

62 Kan. 801

THE STATE OF KANSAS v. LEONARD MOON

No. 11,993

Supreme Court of Kansas

April 6, 1901

Decided January, 1901.

Appeal from Saline district court; R. F. THOMPSON, judge.

Judgment affirmed.

A. A Godard, attorney-general, and C. W. Burch, county attorney for The State.

David Ritchie, for appellant.

OPINION

ELLIS, J.:

This was a prosecution for burglary with intent to commit rape. In the information it was averred that defendant did, "in the daytime, break into and enter the dwelling-house of Joseph A. Bachofer, then and there situate, by forcibly pulling open a closed outer door of said dwelling-house," etc. It was also properly averred that a human being was then within said dwelling, and in all other respects the charge was sufficient. The jury found the defendant guilty of burglary in the second degree, and he was sentenced to the penitentiary for five years.

The first question presented for consideration is whether the verdict is sustained by the evidence. The defendant is described by the witnesses as a tramp, having irregular and temporary employment in the neighborhood of Bachofer, a Saline county farmer, who, with his wife and two children, the elder of which was but three years old, lived in a creek bottom quite a distance away from, and not within sight of, the other houses in the neighborhood. The farmer's wife was not acquainted with the defendant, and had never spoken to him. He came to the place just as her brother was ready to leave, and for the purpose of getting him away told the brother that the latter would be needed very soon at a neighbor's farm, where they were thrashing. Defendant then pretended to depart, taking the road toward Salina, but as soon as the brother, whom he believed to be the woman's husband, was out of sight he returned, and coming up to the house where the woman and her two little children were (the door of the room being open and its aperture being closed by a screen door held in place by coil springs) tried to engage her in conversation. Meeting with no encouragement, he then inquired if the man who had just driven away was her husband, and was informed that he was her brother. He then asked where her husband was, and in reply was told that he was out in the field. Being thus assured that the woman was alone with her children, he asked if he might come in, and receiving an abrupt negative reply, he asked if those present were the only children she had. Upon being told that they were, he asked if she had any larger ones, and being told that she had not, he again asked to be admitted, to which the woman replied that she did not want him or anyone else to come in. He then put up his arm to shade his eyes, and after standing up to the screen door and looking through the apartment thoroughly, said to the woman that she would not care if he came in; that it was her husband that went away, and if it was not, he would not see them anyway. The children intuitively became frightened and clung to her dress, and she again forbade defendant to enter, but he pulled open the door and boldly entered. The children screamed with terror, and she, dragging them by her skirts, hastened to a cupboard near by and procuring a loaded revolver, leveled it at his head, and told him to go out, or she would shoot. He was advancing toward her and, according to her testimony, was within five feet of her at the time. He told her not to shoot--that he would go, and he did go. As soon as he left the premises the woman took the children and in great fright fled from the house to find her brother, to whom she made known what had occurred. The defendant was arrested soon afterward, and, before he was informed of the charge against him, said that he knew he was "wanted for insulting that woman." The defendant, as a witness in his own behalf, denied nearly all these statements of the woman, but we think the jury were justified in believing them to be true.

Counsel for appellant insists that this testimony tends to show that defendant's purpose in entering the house was to prevail over the woman by solicitation, and that it fails to show an intent to ravish her. As before stated, the witnesses describe the defendant as having the appearance of a tramp, which fact the prosecution regards as important in determining whether the defendant had any reason to believe that the woman would be likely to yield to the blandishments of such a repulsive creature as he then appeared to be.

By appellant's counsel, we are cited to The State v. Scholl, 130 Mo. 396, 32 S.W. 968; Carson v. The State, 24 S.W. 409; Fields v. The State, 24 S.W. 907; Kelley v. The State, 22 S.W. 588; State v. Owsley, 102 Mo. 678, 15 S.W. 137; State v. Biggs, 93 Iowa 125, 61 N.W. 417; White v. The State, 36 N.E. 275; Mitchell v. The State, 32 Tex. Crim. 479, 24 S.W. 280; The State v. Frazier, 53 Kan. 87, 36 P. 58; Thompson et al. v. The People, 96 Ill. 158. We have examined these authorities, and think each case is clearly distinguishable in its facts from the case at bar. It would be idle to discuss them here.

It may be admitted that, as the case appears from the record, the jury might properly have hesitated to convict -- that it looks like a border case; still they saw the witnesses and the defendant, and heard them testify in the case. The court below, with these advantages, which we do not possess, approved the finding of the jury. In view of these considerations, this court cannot say that the testimony does not sustain the verdict. In the fear that on account of the fiendish conduct of the defendant, of his apparent lack of all the better elements of manhood, of his disregard of the rights of the helpless, of his utter obliviousness of the duties and disposition to ignore the amenities which all men owe to women, he might be exposed to the danger of an uncontrollable prejudice on the part of the jury, we have carefully scrutinized the record for the purpose of trying to discover any evidence thereof, and we are convinced that he had a fair trial.

It is also contended that the information does not state facts sufficient to charge the defendant with burglary in the second degree. Counsel for appellant most ingeniously argues that the offense charged is burglary in the third degree. He admits that the precise words of the statute need not be used, but he contends that "forcibly pulling open a closed outer door," while it constitutes a breaking, does not constitute such a breaking as is requisite under sections 64 and 65 of chapter 100, General Statutes of 1897 (Gen. Stat. 1899, §§ 2005, 2006), which are as follows:

"SEC. 64. Every person who shall be convicted of breaking into and entering, in the night-time, the dwelling-house of another, in which there shall be at the time some human being, with intent to commit some felony or any larceny therein, either: First, by forcibly bursting or breaking the wall, or any outer door, window or shutter of a window of such house, or the lock or bolt of such door, or the fastening of such window or shutter; or, second, by breaking in any other manner, being armed with some dangerous weapon, or with the assistance and aid of one or more confederates then actually present, aiding and assisting; or, third, by unlocking an outer door, by means of false keys, or by picking the lock thereof, shall be adjudged guilty of burglary in the first degree.

"SEC. 65. Every person who shall be convicted of breaking into a dwelling-house in the daytime, under such circumstances as would have constituted the crime of burglary in the first degree if committed in the night-time, shall be deemed guilty of burglary in the second degree."

The defendant's counsel urges that the legislature intended to provide that, in order to commit the offense of...