State v. Russell
| Decision Date | 05 April 1902 |
| Docket Number | 13,040 |
| Citation | 68 P. 615,64 Kan. 798 |
| Parties | THE STATE OF KANSAS v. MARION RUSSELL |
| Court | Kansas Supreme Court |
Decided January, 1902.
Appeal from Greenwood district court; G. P. AIKMAN, judge.
Judgment reversed.
SYLLABUS BY THE COURT.
CRIMINAL PROCEDURE -- Assault to Commit Rape -- Information. Under the peculiar statutory provisions of this state defining the crime of rape, when the prosecutor intends to charge the offense of assault with intent to commit rape on a female under the age of consent, eighteen years, the specific act or acts done toward the commission of the offense must be alleged, that the court may be informed, and therefrom declare, whether the law has been violated, and that the defendant may be advised of the nature and character of the acts which are alleged to constitute the offense charged against him.
T. C Turner, county attorney, and James Shultz, for The State.
Fuller & Jackson, for appellant.
Appellant was charged, tried and convicted upon the following information:
"In the name, by the authority, and on behalf of the state of Kansas, I, T. C. Turner, county attorney in and for Greenwood county, Kansas, being duly empowered to inform of public offenses committed within said county, come now here and give the court to understand and be informed, that on, to wit, the 10th day of May, A. D. 1901, at the county of Greenwood, in the state of Kansas, one Marion Russell, then and there being, did then and there unlawfully, wilfully and feloniously, in and upon one May Hodge, a female child under the age of eighteen years, to wit, of the age of sixteen years, make an assault on her, with intent her, the said May Hodge, then and there feloniously and unlawfully and carnally know and abuse her, the said May Hodge, contrary to the statute in such case made and provided, against the peace and dignity of the state of Kansas."
Defendant appeals. A motion to dismiss the appeal is presented, but it is not well taken.
As the only question we deem necessary to decide in this case arises upon the overruling of a motion to quash the information, a statement of the facts shown by the record is rendered unnecessary. However, it may be said in passing, giving the evidence of the prosecuting witness and other witness for the state the most favorable interpretation possible for the state, the judgment of conviction is, to say the least, not amply supported by proof.
The motion to quash raises this question: Is the above information defective in failing to aver the act or acts done toward the commission of the offense of assault with intent to commit the crime of rape upon a female under the age of eighteen years, this being the offense which the state contends is charged thereby? This question arises upon the peculiar condition of our statute law with regard to the offense of what is commonly known as statutory rape. In the commission of this substantive offense the element of force has no place. Carnal knowledge of a female under the age of consent -- eighteen years -- in all cases is rape, whether or not force is employed. Hence, it is necessary in such case to allege and prove only the carnal knowledge and the age of the female, and the crime is established. That the above information would be sufficient to sustain a conviction of assault with intent to ravish by force, if the age of consent fixed by the statute were ten, twelve or a less number of years than that alleged in the information, may be and is conceded. But is it sufficient to withstand a motion to quash...
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State v. Radke, 37723
...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 o......
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State v. Thompson
...in support of his contention (In re Lloyd, Petitioner, 51 Kan. 501, 33 P. 307; The State v. Frazier, 53 Kan. 87, 36 P. 58; The State v. Russell, 64 Kan. 798, 68 P. 615; The State v. Bowles, 70 Kan. 821, 79 P. 726; State v. Custer, 85 Kan. 445, 446, 116 P. 507; People v. Murray, 14 Cal. 159;......
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Trimble v. Territory of Arizona
...542, 23 L.Ed. 588; Dunbar v. United States, 156 U.S. 185, 15 S.Ct. 325, 39 L.Ed. 390; United States v. Burns, 54 F. 351; State v. Russell, 64 Kan. 798, 68 P. 615; v. Milwaukee, 17 Wis. 26; Lasindo v. State, 2 Tex. App. 59; Williams v. State, 12 Tex. App. 395; State v. Locke, 15 Ind. 419; St......
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Hogan v. State
... ... advised of the accusation against him ... The ... state's attorney who drew the indictment has not filed a ... brief in its support, but the adjudged cases holding it bad ... are numerous. We cite State v. Frazier, 53 Kan. 87, ... 36 P. 58, 42 Am. St. Rep. 274; State v. Russell, 64 ... Kan. 798, 68 P. 615; Cunningham v. Commonwealth, 88 ... Va. 37, 13 S.E. 309; Commonwealth v. Clark, 6 Grat ... 675; Hicks v. Commonwealth, 86 Va. 223, 9 S.E. 1024, ... 19 Am. St. Rep. 891; Thompson v. People, 96 Ill ... 158; Kinningham v. State, 119 Ind. 332, 21 N.E. 911; ... State ... ...