State v. Ragland

• Decision Date: 03 July 1952
• Docket Number: No. 38653,38653
• Citation: 173 Kan. 265,246 P.2d 276
• Parties: STATE v. RAGLAND.
• Court: Kansas Supreme Court

Page 276

246 P.2d 276

173 Kan. 265

STATE v. RAGLAND.

No. 38653.

Supreme Court of Kansas.

July 3, 1952.

Rehearing Denied July 25, 1952.

Syllabus by the Court.

The record examined in a criminal action wherein the defendant was charged in four counts with the crime of rape, and held:

1. The trial court did not err in its instructions to the jury insofar as the use of force was concerned.

2. The trial court's intruction to the jury as to the extent of penetration was not prejudicially erroneous.

3. The trial court's sentence was definite and certain.

4. The trial court did not err in its instruction limiting to one count of the information the matter of attempt to commit a rape.

5. The proof established that the crimes charged were committed in Douglas County.

6. The trial court did not err in denying defendant's motion for a new trial.

Karl V. Shawver and Karl V. Shawver, Jr., of Paola, were on the briefs for appellant.

Milton P. Allen, County Atty., Lawrence, argued the cause, and Harold R. Fatzer, Atty. Gen., Paul E. Wilson, Asst. Atty. Gen., and Robert B. Oyler, Asst. County Atty., Lawrence, were with him on the briefs for appellee.

THIELE, Justice.

Defendant Ragland was tried on an information containing four counts charging rape. He was convicted on each count and appeals.

In view of the specifications of error it is unnecessary that we review the pleadings or the evidence in detail.

The first three counts charged that on separate days the defendant did 'willfully, unlawfully and feloniously rape and ravish, by carnally and unlawfully knowing, (name omitted) a female child under the age of 18 years, to-wit: of the age of 13 years.'

The fourth count charged defendant did 'willfully, unlawfully, feloniously, and forcibly rape and ravish, by carnally and unlawfully knowing, (name omitted) a female child under the age of 18 years, to-wit: of the age of 8 years.'

Upon arraignment defendant entered a plea of not guilty. At the trial there was evidence establishing the ages of the two females and tending to show perpetration of the offenses charged, and showing penetration into the body as required by G.S.1949, 62-1417. Testifying in his own behalf defendant denied explicitly the commission of any of the acts charged and offered proof of alibi as to the first three counts.

The trial resulted in a verdict of guilty. Defendant's motion for a new trial was denied and he was sentenced to the penitentiary. In due time defendant appealed. In his abstract he specifies error in seven particulars which will be noticed, although not in the order presented by him.

Appellant's first specification of error is that the trial court erred in not giving his requested instruction that with respect to the fourth count defendant must have used force in committing the offense charged. In the instructions given, the jury was told that while the fourth count alleged the use of force, nevertheless it was not necessary for the state to prove the use of force. Other instructions advising the jury as to what constitutes rape need not be detailed. Appellant cites no authority in support of his contention. In State v. Hansford, 81 Kan. 300, 106 P. 738, the court, after stating the question of use of force had been before the court in different forms, said:

'Sexual intercourse with a female under 18 years of age constitutes the crime of rape (citing the statute). Whether the act is accomplished by force or with consent is immaterial.' 81 Kan. loc. cit. 302, 106 P. loc. cit. 739.

And held:

'Sexual intercourse with a female less than 18 year of age constitutes 'rape,' as defined by section 2016, of the Gen. St. of 1901, whether it is accomplished by force or with consent.' (Syl. p3.)

Appellant's fourth specification of error also refers to the trial court's refusal to give his requested instruction as to the use of force, his argument being that the information charged use of force and his plea of not guilty made an issue, that under State v. Cunningham, 120 Kan. 430, 243 P. 1006, it was held that, in a prosecution upon a charge of murder where there was evidence tending to show the offense fell within one or more of the degrees of manslaughter, it was the imperative duty of the trial court, upon request, to state fully the law relating to the inferior degrees of the offense, and that in the instant case there was no instruction on the issue joined. The rule of that case is not controlling here. In addition to what has been said above, authorities are ample that use of force is immaterial where the offense, if any, is committed on a female under a stated statutory age. 75 C.J.S., Rape, § 13, p. 479; 44 Am.Jur. 913.

We hold that with reference to the first and fourth specifications, there was no error.

Appellant's second specification of error, in its entirety, reads as follows:

'The court erred in instructing the jury that mere contact of the sexual organs of the male and female were sufficient to constitute the crime of rape and that penetration was not necessary. (6) We think it has been established that penetration is absolutely necessary. State v. Grubb, 55 Kan. 678 ; State v. Cross, 144 Kan. 368 .'

The state points out, as is later noticed, that appellant's statement as to the instruction, is inaccurate.

In State v. Grubb, supra, conviction was had on a charge of rape of a female under the age of eighteen years. There was no direct proof of sexual intercourse. All that was said in discussing the question of penetration was:

'2. The court, although using the term 'carnal knowledge' in the fourth instruction to the jury, did not anywhere define it, but in the fifth seemed to assume that evidence of 'actual contact of the sexual organs' was sufficient to warrant a conviction. Proof of actual penetration was necessary, and the jury ought to have been so informed. Code, Cr.Proc. § 213; State v. Frazier, 54 Kan. 719, 725, 39 P. 819; 2 Bishop, Crim.Law, § 1127.' 55 Kan. loc. cit. 680, 41 P. loc. cit. 951.

What is said in State v. Frazier, cited in the last mentioned case, does not assist in determining what is penetration.

In State v. Cross, supra, conviction was had for an attempt to commit rape. It was there said, without further elaboration, that:

'It is well settled by the law of this state that to sustain a conviction of a charge of rape there must be proof of the actual penetration of the sexual organs (State v. Grubb, 55 Kan. 678, 144 Kan. loc. cit. 368, 59 P.2d loc. cit. 36.

We note also the provision of our criminal code that proof of actual penetration into the body shall be sufficient proof to sustain an information for rape (G.S.1949, 62-1417) but neither the statute itself, nor any of the above decisions, nor any other of our decisions, attempts to define the term 'penetration'.

In 44 Am.Jur. 902, it is said:

'Penetration is necessary, according to all the authorities, to complete the crime of rape. Even emission without penetration is not sufficient. It has been held by some courts that there must be penetration of the female organ by the whole organ of the male, otherwise it is conatus; but the weight of authority, both English and American, is that although some penetration must be shown beyond a reasonable doubt, it need not be full penetration; nothing more than res in re being requisite. While the private parts of the male must have entered at least to some extent in those of the female, the offense is committed if the male organ enters the labia of the female organ. Rupture of the hymen is not necessary, although at one time this was deemed indispensable. It is not necessary to show that there was a laceration of the vagina, which usually results from a first-time copulation, especially with young girls.'

In 75 C.J.S., Rape, § 10, p. 472, penetration is thus defined:

'Penetration means that the sexual organ of the male entered and penetrated the sexual organ of the female; mere actual contact of the sexual organs is not sufficient; and if the female is not sufficiently developed to admit of the slightest penetration there can be no carnal knowledge. However, penetration to any particular extent is not required, and generally, sometimes by virtue of a statutory provision, which provision applies to all the subdivisions of the statute defining the offense, it is not necessary that the penetration should be perfect, the slightest penetration of the body of the female by the sexual organ of the male being sufficient; nor need there be an entering of the vagina or rupturing of the hymen, the entering of the vulva or labia being sufficient; but some degree of entrance of the male organ within the labia pudendum is essential.'

We come now to a recital of what occurred at the trial. Although there may have been some evidence from which a different conclusion was drawn, we are concerned now only with evidence which supports the jury's verdict, and without detailing it there was evidence warranting a conclusion that the defendant penetrated the bodies of the girls to some extent--the girl named in the first three counts stating in substance that Ragland put his 'dick' halfway in her, the girl named in the fourth count saying Raglund stuck his 'rhubarb' in her; that it hurt and she told him to stop; that when it came out she was all wet. Although appellant requested six separate instructions, none of them remotely touched upon the proof of the degree of penetration sufficient to sustain a conviction, and when the trial court instructed by jury the appellant made no objection. We pause here to note that it is the duty of the trial court to charge the jury on all matters of law necessary for their information in giving their verdict (G.S.1949, 62-1447) and that it is not necessary in order to predicate error thereon, that a defendant in a criminal action object to the giving of an instruction to the jury, if the instruction is clearly erroneous. State v. Severns, 158 Kan. 453, 148 P.2d 488.

The...