State v. Oswalt

• Decision Date: 07 October 1905
• Docket Number: 14,435
• Citation: 82 P. 586,72 Kan. 84
• Parties: THE STATE OF KANSAS v. J. F. OSWALT
• Court: Kansas Supreme Court

82 P. 586

72 Kan. 84

THE STATE OF KANSAS v. J. F. OSWALT

No. 14,435

Supreme Court of Kansas

October 7, 1905

Decided. July, 1905.

Appeal from Decatur district court; ABEL C. T. GEIGER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAPE--Evidence of Subsequent Offense--Reversal. Assuming that in a prosecution for statutory rape it is not competent for the state to show specific acts of sexual intercourse between the defendant and the complaining witness that took place after the act upon which reliance is had for a conviction, a judgment will not be reversed merely because testimony of that character is incidentally brought out during an examination upon another matter, especially where it does not clearly appear that the objectionable evidence relates to a subsequent and not to a prior transaction.

2. RAPE--Failure to Make Complaint--Instructions. In a prosecution for statutory rape, where the use of force by the defendant is not charged, it is not material error for the court to refuse to give a special instruction that in weighing the evidence of the complaining witness, a girl seventeen years of age, the jury may consider the circumstance that she made no complaint immediately after the time the offense is alleged to have been committed.

C. C Coleman, attorney-general, and Jay F. Close, assistant attorney-general, for The State.

J. P. Noble, and J. F. Peters, for appellant.

MASON J. All the Justices concurring.

OPINION

MASON, J.

J. F. Oswalt appeals from a conviction upon a charge of statutory rape, alleged to have been committed upon his daughter, seventeen years of age. A large number of assignments of error have been made and argued. It is not thought that any good purpose would be served by reviewing them in detail. All of them have been carefully examined, and the conclusion is reached that no material error is shown. Some of the objections now made to the evidence do not appear to have been properly brought to the attention of the trial court. Upon the whole record it does not appear that any substantial right of the defendant was invaded. But two of the questions presented will be separately discussed.

Complaint is made that the state was permitted to show that sexual intercourse took place between the defendant and the complaining witness after the date alleged as that of the act relied upon for a conviction. According to the greater number of authorities, while it is competent for the state to show other similar acts preceding the commission of the offense ( The State v. Borchert, 68 Kan. 360, 74 P. 1108), it is not permissible to give evidence of any such act occurring afterward. The cases bearing on the question are collected in a note to People v. Molineux, 168 N.Y. 264, 61 N.E. 286, published in 62 L.R.A. 193, at pages 329 to 338.

Conceding this to be the proper rule, the present case affords no sufficient ground for its application. It is true that the complaining witness was permitted over the defendant's objection to testify that she had had intercourse with him in some other bed since some certain time referred to, which appears to have been the time the offense is charged to have been committed. But this was upon redirect examination, after the witness had apparently been led upon cross-examination to say that she had never, at any time, had intercourse with her father in any other bed. The sole purpose of asking the question seems to have been to elicit a correction of an inaccurate statement upon a collateral and probably wholly immaterial matter which was brought out by the defendant, and which was not again referred to. It is obvious that there was no effort on the part of the...