State v. Stevens

• Decision Date: 09 May 1896
• Docket Number: 10530
• Parties: THE STATE OF KANSAS v. ROBERT A. STEVENS
• Court: Kansas Supreme Court

44 P. 992

56 Kan. 720

THE STATE OF KANSAS v. ROBERT A. STEVENS

No. 10530

Supreme Court of Kansas

May 9, 1896

Decided January, 1896.

Appeal from Wallace District Court.

ON January 22, 1896, the defendant, Robert A. Stevens, being charged with rape, was adjudged guilty of attempting to ravish Lulu Snowbarger, a girl under 18 years of age, and he was sentenced to imprisonment in the penitentiary for four years and six months. He appeals from this judgment. The opinion was filed May 9, 1896.

Judgment and cause remanded.

Bond & Osborn, for appellant.

F. B Dawes, attorney general, and B. G. Hurlburt, county attorney for The State; W. S. Roark, of counsel.

OPINION

MARTIN, C. J.:

I. The original complaint was filed with the justice of the peace on July 16, 1894, and a warrant was issued on that day for the arrest of the defendant. The complaint, as also the information filed October 17, 1894, charged the commission of the offense on July 1, 1894. The evidence first offered tended to show the time of the offense to be in October 1892, or on the night that the girl's mother went to Denver on a two weeks' visit, the day of the month not being shown. After the girl had testified to this occurrence, she was permitted, against the objection of the defendant, to testify to another affair as happening about July 1, 1894, in the nature of an indecent assault upon her by the defendant. After the close of the testimony for the prosecution, the court requiring it, the state elected to rely for conviction upon the offense of October, 1892, and the court instructed the jury to disregard the evidence as to any other offense. The court erred in admitting testimony as to the second offense. It had no relation to the circumstance relied upon for a conviction, and threw no light upon the same. In its nature it could not have been otherwise than prejudicial to the defendant. The rule that the evidence must correspond with the allegations and be confined to the point in issue is applicable alike in civil and criminal cases. (1 Bish. Cr. Pr. § 1046; 1 Chitty Cr. Law, 556; The State v. Boyland, 24 Kan. 186.) The information contained one count only, and it charged a single crime, and although the state was not bound to prove the time of the commission of the offense just as alleged, yet the defendant was notified by the information that he was charged with one crime only. The court evidently had the impression that in felonies, as well as in certain classes of misdemeanors, several different offenses of the same nature could be proved under a single charge, and the state might then be compelled to elect upon what particular transaction it would rely for a conviction; but this rule is not applicable to felonies. While two or more distinct felonies of like nature may be united in one information or indictment, the charges should be made under separate and distinct counts. (The State v. Goodwin, 33 Kan. 538.) And where the information charges a single felony, the evidence should be confined to it alone, unless it is necessarily connected or associated with another offense, in which case the evidence as to the two offenses cannot be disassociated, as in The State v. Folwell, 14 Kan. 105, and The State v. Adams, 20 id. 311, 319. And sometimes it may be competent to show several distinct acts tending to prove a motive, and there may be other exceptional cases where like evidence may be admitted; but proof of an assault nearly two years after the crime charged and relied upon, as in this case, does not come within any exception...