State v. Radke, 37723

• Citation: 168 Kan. 334,212 P.2d 296
• Decision Date: 10 December 1949
• Docket Number: No. 37723,37723
• Court: United States State Supreme Court of Kansas
• Parties: STATE v. RADKE.

Page 296

212 P.2d 296

168 Kan. 334

STATE v. RADKE.

No. 37723.

Supreme Court of Kansas.

Dec. 10, 1949.

Syllabus by the Court.

1. An information charged defendant in the language of the statute with attempt to commit statutory rape, but omitted to state specifically the overt acts tending to constitute the attempt. Defendant proceeded to trial, and the state's witnesses testified as to certain overt acts, but the jury was unable to reach a verdict and a mistrial was declared. A retrial followed, and after a jury was empaneled and sworn for the second trial, the district court permitted the state to amend the information by setting forth certain overt acts. These overt acts, thus supplied, were the same as those referred to in the first trial by the state's opening statement and evidence. Held: (a) The amendment did not change the charge against defendant and did not urge any new issues; (b) the defendant was not prejudiced thereby; and (c) such amendment of the information was proper during the trial at the beginning of the introduction of the state's evidence.

2. In a case such as that described in syllabus p1, the defendant was in jeopardy when the jury was empaneled and sworn for the retrial, but it was not error and did not place defendant in double jeopardy for the trial court to temporarily remove the jury from the court room for the purpose of disposing of such legal formalities as permitting an amendment to the information and having the defendant rearraigned thereon, and to thereafter recall the same jury and proceed with the trial.

3. The strategy of a litigant as to the conduct of his trial is a subject for the litigant's own direction, and he cannot be heard to say on appeal that his defense failed because the strategy he pursued proved to be improper or ill-advised, thereby resulting in an unfair trial.

4. The trial court's rulings referred to in the opinion as well as the entire record before us examined, and held: There is no showing whatever of misconduct on the part of the trial court.

5. Whether a nine year-old girl is competent as a witness in a criminal case is a question to be addressed to the sound discretion of the trial court; and in the absence of a clear showing of abuse of such discretion, the trial court's conclusion thereon will not be disturbed on appeal.

6. A verdict of 'guilty' in a criminal case will not be disturbed unless substantial rights of the defendant have been prejudiced.

Bruce C. Heath, of Abilene, argued the cause and was on the briefs for the appellant.

John V. O'Donnell, County Attorney of Ellsworth, argued the cause, and Harold R. Fatzer, Attorney General, and C. Harold Hughes, Assistant Attorney General, were with him on the briefs for the appellee.

The opinion of the court was delivered by

ARN, Justice.

This is an appeal from a conviction upon a charge of attempting to commit statutory rape upon a five year-old girl. Appellant, a man in his middle forties, was first tried on October 14, 1948, but the jury was unable to agree upon a verdict and it was declared to be no trial. At the following term, and on February 16, 1949, appellant was tried and convicted.

Preliminary to the trial of October 14, 1948, appellant was arraigned and pleaded 'not guilty' to an information which is now claimed to be defective in that it failed to set forth the overt acts tending to accomplish the commission of an attempt to commit rape. Appellant did not attack the information prior to the trial of October 14, 1948, and now concedes that he thereby waived any such deficiency in that information insofar as the first trial was concerned. Sometime between October 14, 1948, and February 16, 1949, the county attorney filed an amended information which was identical with the original information except that it contained a statement as to the overt acts. The amended information was not filed with leave of court nor pursuant to any court order. The trial of February 16, 1949, was commenced, a jury was empaneled and sworn, the county attorney made his opening statement, and the witnesses were sworn without appellant being arraigned or entering a plea to the amended information, or without it being read to him by the court. The state called its first witness who, in response to two questions by the county attorney, stated her name and address. Thereupon appellant's counsel asked to present a legal matter and the jury was temporarily retired from the court room. Appellant then offered and argued two motions: (1) A motion to quash and strike the amended information from the files for the reasons that defendant was not arraigned, had not had the amended information read to him in open court, and did not enter a plea thereto prior to testimony being taken in the case; and (2) a motion to quash the original information for the reason that it omitted a statement of the overt acts and therefore did not state facts sufficient to constitute a crime. The trial court overruled both motions, but concurrently therewith, granted the state permission to file the amended information and ordered the defendant brought forward for arraignment. The amended information was read to appellant and he was asked to plead. At that point counsel for appellant advised the court that appellant refused to plead for the reason 'that he had been put on trial once before and is now in jeopardy a second time and refuses to plead to the amended information as read'. A plea of 'not guilty' was then entered on behalf of appellant by the court. The court then ordered the jury to be recalled and resworn, the state's opening statement to be made again, and the witnesses resworn--to all of which appellant objected contending that he was being placed in double jeopardy. Counsel for appellant again objected to the trial court's ruling on his motions to quash and advised that he was then and there appealing from said rulings. When these formalities were concluded the trial continued with introduction of the state's evidence. As the trial progressed, appellant objected to the testimony of each state witness and in each instance save one, moved that the testimony of the respective witnesses be stricken. Other than this, appellant did not participate in the trial and offered no evidence in his own defense. After his conviction, appellant filed a motion for new trial which the trial court overruled. The record shows that sentence was pronounced pursuant to G.S.1935, 21-424 and 21-101, subd. 2.

Appellant contends that he was in jeopardy when the trial began on February 16, 1949,--that is, at the time the jury was empaneled and sworn, the opening statement made by the state, and the first state's witness was questioned as to her name and address. He argues that at that time there was in fact no amended information because it had not been filed by leave of court and appellant had not then been afforded the opportunity of having it read to him nor of pleading to it. He argues further that the original information was a nullity because of its insufficiency. For these reasons it is urged that both motions to quash should have been sustained by the trial court. Appellant contends that for the trial court to recess the jury, permit the filing of the amended information, arraign the appellant thereon, and then recall the jury and begin all over, placed him in jeopardy a second time. These contentions of appellant require careful analysis.

I. The original information filed prior to October 14, 1948, to which appellant pleaded 'not guilty', charged as follows:

'That on or about the 21st day of August, 1948, at the County of Ellsworth and State of Kansas then and there being, one Ernest Radke, in and upon one Peggy Perez, also known as Pauline Perez, also known as Pauline Galloway, a female person under the age of 18 years, towit: of the age of 5 years, unlawfully and feloniously did make an assault, and her, the said Peggy Perez, also known as Pauline Perez, also known as Pauline Galloway, then and there intentionally, unlawfully, and feloniously did attempt to carnally know and abuse, contrary to the form of the Statutes in such case made and provided and against the peace and dignity of the State of Kansas.'

The charge as above stated is in the language of the statute, G.S.1935, 21-424, and in a general way meets the requirements of G.S.1935, 21-101, by charging the doing of an act toward the commission of the offense--i. e., 'attempting to carnally know and abuse'. It was not fatally defective, as contended by appellant, merely because it omitted all of the specific overt acts which may be relied upon to constitute the attempt, although it may have been subject to motion. In State v. Kelley, 125 Kan. 805, 265 P. 1109; 88 A.L.R. 351, II note, it was held that where an information charged that an attempt to rape was accomplished by a forcible assault, it was defective in that it failed to describe the specific acts constituting the assault, but was not fatally defective or prejudicial to the defendant. The case of State v. Russell, 64 Kan. 798, 68 P. 615, was reversed in this court because the information did not set forth the specific acts done toward the commission of the offense of assault with attempt to commit rape--but there, the information had been attacked by a motion to quash and it was held the trial court erred in overruling that motion.

Perhaps the information in the instant case was subject to objection by defendant's motion to quash,--but when so challenged it could be amended provided any such amendment was made pursuant to G.S.1935, 62-808. The original information was not challenged at the first trial (which by reason of a hung jury resulted in a mistrial, or no trial) and it was not challenged until after the retrial began on February 16, 1949. It is true the county attorney had sought to amend the information during the interim between October 14, 1948, and February 16, 1949, but having done so after def...