State v. Stone

• Decision Date: 09 June 1906
• Docket Number: 14,819
• Citation: 85 P. 808,74 Kan. 189
• Parties: THE STATE OF KANSAS v. ROY M. STONE
• Court: Kansas Supreme Court

85 P. 808

74 Kan. 189

THE STATE OF KANSAS v. ROY M. STONE

No. 14,819

Supreme Court of Kansas

June 9, 1906

Decided January, 1906.

Appeal from Montgomery district court; THOMAS J. FLANNELLY, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

STATUTORY RAPE--Evidence--Subsequent Offense and Conduct. A defendant was convicted of carnally knowing a female under the age of eighteen years. Held, that under all the correlated circumstances of the case no abuse of the trial court's discretion is shown by the admission of evidence of an act of sexual intercourse between the defendant and the prosecutrix occurring fifteen months after the one charged, of a succeeding attempt at abortion, of renewals of a previous promise of marriage, of the flight of the defendant, and of the birth of a child as a result of the second carnal act.

C. C. Coleman, attorney-general, and Thomas E. Wagstaff, county attorney, for The State; S. H. Piper, of counsel.

O. P. Ergenbright, and J. B. Tomlinson, for appellant; J. R. Charlton, of counsel.

BURCH J. All the Justices concurring.

OPINION

BURCH, J.

Appellant was convicted of the crime of carnally knowing a female under the age of eighteen years. The principal errors assigned are that in his opening statement to the jury the county attorney related facts which he expected to prove concerning the relations of appellant and the prosecutrix occurring subsequent to the date of the crime charged, and involving other punishable offenses; that evidence of the character outlined in the opening statement for the prosecution was introduced; that the cross-examination of appellant as a witness in his own behalf was unduly extended; and that the evidence was insufficient to support one of the material allegations of the information.

If the evidence itself was proper the statement of it to the jury was proper. Therefore the first two propositions present but one legal question. The evidence need only be sketched. It discloses an agreement between two young people to marry; a lustful desire on the part of the appellant to enjoy his betrothed, which was gratified on the night of May 10, 1902, a month before she was capable in law of giving her consent; temporary grief and seeming repentance for the act and a vow against its repetition; Sunday visits, evening calls three or four times a week, attendance upon church and balls together, and otherwise intimate relations until August, 1903, when another act of sexual intercourse occurred; pregnancy of the prosecutrix, her submission to an attempt at an abortion with medicine procured by appellant, renewed promises to marry, and statements on his part concerning preparations for a place for them to live; his flight to the state of Washington, and the birth of her babe in May, 1904.

Counsel for appellant insist upon discussing the case as if it were within the rule that one crime cannot be proved by other disconnected offenses, and the authorities for that rule are presented with much unction. Such cases are distinguished by this court in the case of The State v. Borchert, 68 Kan. 360, 74 P. 1108.

It is argued with great vigor that acts of sexual intercourse subsequent to the one charged in the information have no relevancy. Upon this question the courts are divided. This court, in the case just cited, came to the conclusion that such conduct may under certain circumstances evidence previous acts of the same kind. Such is the rule in the majority of the states. It is approved by a majority of the text-writers, and will be adhered to in this case.

It is further contended that other of the facts recited occurring subsequent to May 10, 1902, had no tendency to prove the incident alleged to have taken place on the night of that day. On the morning of May 11, 1902, these young people possessed, so far as...