State v. Newcomer

Decision Date08 October 1898
Docket Number11084
Citation54 P. 685,59 Kan. 668
CourtKansas Supreme Court

Decided July, 1898.

Appeal from Rush District Court. J. E. Andrews, Judge.

Judgment affirmed.

L. C Boyle, Attorney-General, and W. T. Clark, County Attorney for the State.

H. Fierce, G. R McKee, and H. E. Winterburn, for appellant.



O. L. Newcomer was prosecuted upon the charge of feloniously having had sexual intercourse with Bertha Ickes, an unmarried female under the age of eighteen years. A conviction followed, and sentence of the court was imprisonment in the penitentiary for a term of five years. It appears that shortly after the act of intercourse the defendant was arrested upon a charge of rape, committed on February 20, 1897; but the parties interested were brought together, and it was agreed that a marriage should take place between the defendant and Bertha Ickes, and that the prosecution should be discontinued. The marriage occurred and the prosecution was dismissed, and the costs of the same taxed to the defendant. They lived together as man and wife until after the birth of the child, which occurred on October 12, 1897. During that time he had employment in the community where they lived, and his earnings were largely used in providing a home, and in the protection and support of his wife. After the birth of the child, and about the first of November, he obtained a situation as telegrapher at Enterprise, Kansas; and he states that shortly after going there, reports reached him that his wife had had improper relations with another young man prior to his marriage, and that the child was not his own. On November 25, 1897, he wrote a letter to his wife's father, calling his attention to the reports which had reached him, and stating that he did not intend to longer live with her.

Soon after the receipt of this letter, the father of his wife instituted the present proceeding, by filing a complaint charging the defendant with having had unlawful and felonious intercourse with Bertha Ickes on February 9, 1897. At the trial the fact of unlawful sexual intercourse was well established, and in fact it was finally admitted by the defendant. It was also shown that the girl was less than sixteen years of age when the offense was committed, and therefore was incapable of giving a valid assent to the sexual act.

As a defense, Newcomer relied solely on his...

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5 cases
  • State v. Dye
    • United States
    • Kansas Supreme Court
    • October 8, 1938
    ...9th ed., page 671, and 1 Wharton's Criminal Law, 12th ed., page 517. Two cases in Kansas hold the same way, one the case of State v. Newcomer, 59 Kan. 668, 54 P. 685, which was a rape case where the girl under eighteen years age forgave the accused and subsequently married him, and the othe......
  • State v. Craig
    • United States
    • Kansas Supreme Court
    • October 8, 1927 permitted by our crimes act; and such a situation may present a strong appeal to the pardoning power of the governor ( State v. Newcomer, 59 Kan. 668, 670, 54 P. 685), once the machinery of the criminal law is set in motion against an offender, neither its principles nor processes can be......
  • Huckaby v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • February 21, 1951
    ...such contention by authority. In fact, the rule is otherwise. The Attorney General calls our attention to the case of State v. Newcomer, 59 Kan. 668, 54 P. 685, where a charge of statutory rape had been filed but later dismissed following the marriage of the parties. Afterwards the charge w......
  • In re Oscar Lewis
    • United States
    • Kansas Supreme Court
    • July 10, 1903
    ... ... habeas corpus on the ground that such marriage is a ... complete bar to the prosecution. The state claims, and the ... claim is supported by the evidence, that the defendant ... abandoned his wife on the morning after the marriage, but ... this ... legislation ... While ... the following language of Mr. Justice Johnston in The ... State v. Newcomer, 59 Kan. 668, 54 P. 685, was used in a ... case of statutory rape, it is equally applicable here, and is ... a satisfactory refutation of every ... ...
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