State v. Stitz

• Decision Date: 06 May 1922
• Docket Number: 23,576
• Citation: 111 Kan. 275,206 P. 910
• Parties: THE STATE OF KANSAS, Appellee, v. JOHN STITZ, Appellant
• Court: Kansas Supreme Court

206 P. 910

111 Kan. 275

THE STATE OF KANSAS, Appellee, v. JOHN STITZ, Appellant

No. 23,576

Supreme Court of Kansas

May 6, 1922

Decided January, 1922

Appeal from Shawnee district court, division No. 2; GEORGE H WHITCOMB, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. STATUTORY RAPE--Other Acts of Sexual Intercourse of Defendant and Prosecutrix Competent. In a prosecution for statutory rape, evidence of prior and subsequent acts of intercourse may be admitted to show lustful disposition of the defendant as well as the existence and continuance of the illicit relation, as these may tend to explain the offense charged and to corroborate other testimony of the prosecution.

2. SAME--Information--Knowledge of County Attorney of Particular Offense Charged. The contention that the defendant could not be convicted of the illicit act charged because the county attorney who filed the information did not have knowledge of the particular offense when the information was filed is sufficiently met where it appears that the county attorney at the time mentioned was informed of numerous acts of illicit intercourse covering the period in which the act relied on for a conviction was committed.

3. SAME--No Error in Instructions. The instructions of the court as to the proof necessary to sustain a conviction of the defendant examined and held to be without error.

4. SAME--Evidence--Verdict. The evidence in the case is held to be sufficient to sustain the verdict of the jury.

5. SAME--Trial--Absence of Formal Arraignment--Waiver by Defendant. The absence of a formal arraignment and plea of the defendant was effectually waived by the acts of the defendant in going to trial without objection and submitting the question of his guilt to the jury impaneled to try him, contesting every question in the case as fully as if there had been a formal arraignment, and not raising any objection as to the non-observance of the formality until the verdict of the jury was returned.

William E. Smith, of Wamego, Guy Bradford, and A. E. Crane, both of Topeka, for the appellant.

Richard J. Hopkins, attorney-general, Tinkham Veale, county attorney, and Ralph H. Gaw, assistant county attorney, for the appellee.

OPINION

JOHNSTON, C. J.:

John Stitz was convicted of having illicit intercourse with Ella Davis before she was eighteen years of age. He appeals.

He first complains that evidence of other like offenses was introduced before the jury and that the court erroneously refused to strike this evidence out upon his motion. After testimony of a number of unlawful acts had been produced, the defendant moved to require the state to elect upon which act it would rely for a conviction. An election was made to rely upon the act of June 3, 1920, at a place north of Topeka, in Shawnee county. Defendant asked for an instruction that the jury should give no consideration to any of the acts brought out in evidence except the elected one. The court instructed the jury that the defendant must be convicted, if at all, for the particular act committed on the occasion fixed by the election, even though there was found to be sufficient proof of other like acts on other occasions; that the prior and subsequent acts testified to would be considered only for the purpose of determining the relations existing between the parties and assisting in determining whether the act relied upon by the state had been committed. While the general rule is that one crime cannot be established by proof of other independent crimes, there are well recognized exceptions to the rule, and one of them is that in sexual offenses proof of prior and subsequent acts of intercourse are admissible to show the lustful disposition, the existence and continuance of the illicit relation, as these tend to explain the act charged and corroborate other testimony of the prosecution. The exception has been so frequently and thoroughly considered that there is no occasion for further consideration or comment. (The State v. Borchert, 68 Kan. 360, 74 P. 1108; The State v. Oswalt, 72 Kan. 84, 82 P. 586; The State v. Stone, 74 Kan. 189, 85 P. 808; The State v. Hibbard, 76 Kan. 376, 92 P. 304; The State v. Brown, 85 Kan. 418, 116 P. 508; The State v. Langston, 106 Kan. 672, 189 P. 153; The State v. Mathes, 108 Kan. 488, 196 P. 607; The State v. Ridgway, 108 Kan. 734, 197 P. 199.)

The refusal of the court to give an instruction that the defendant could not be convicted of the offense charged and relied on by the prosecution unless the county attorney had knowledge of that particular offense when the complaint and information were filed is assigned as error. There is nothing substantial in this complaint. The county attorney who verified and filed the charge had been informed of numerous acts of illicit intercourse between the parties covering the period in which the act relied on for a conviction was committed. This general information was sufficient to overcome the objection of defendant, but it further appears that while Ella Davis was in the office of the county attorney she related at length the different acts of illicit intercourse with defendant, including the one upon which the state elected to rely for a conviction which occurred about June 3, 1920, in Shawnee county.

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