State v. Stout
| Decision Date | 10 November 1917 |
| Docket Number | 20,473 |
| Citation | 101 Kan. 600,168 P. 853 |
| Parties | THE STATE OF KANSAS, ex rel. MATTIE BOTTS, Appellee, v. WARD C. STOUT, Appellant |
| Court | Kansas Supreme Court |
Decided July, 1917.
Appeal from Seward district court; GEORGE J. DOWNER, judge.
Judgment reversed and cause remanded.
SYLLABUS BY THE COURT.
1. ILLEGITIMATE CHILDREN--Minor Defendant--Appointment of Guardian Ad Litem. In a bastardy proceeding the defendant, a minor, made no application to have a guardian ad litem appointed, and on the plaintiff's application after the jury was impaneled and sworn, the court appointed the defendant's father as guardian under the provisions of the civil code (§ 32). Held, not error.
2. SAME -- Material Evidence in Rebuttal -- Defendant's Right to Rebut the Same. It is within the discretion of the trial court to admit in rebuttal facts which should have been offered in chief, and even to reopen the case at any time before final submission and permit either side to offer evidence. Whether in a bastardy proceeding it is material error for the court to permit the prosecution to introduce in rebuttal evidence which should have been introduced in chief depends upon whether the defendant's rights have been prejudiced. In this case it is held, upon the facts stated in the opinion, that it was reversible error to permit the prosecution to prove material and relevant facts of its case by way of rebuttal and to deny defendant the right to introduce testimony to rebut such material and relevant matter.
3. SAME--Cross-examination--Relating to Distinct Offense--Collateral Issue--Answer Conclusive on State. The defendant in a bastardy proceeding was asked on cross-examination, in substance, if he had been guilty of improper conduct with a young girl, not the relatrix, at a time subsequent to the offense upon which the action was based. He denied that he had. Held, that the matter was purely collateral, and that the state was bound by his answer, and that it was reversible error to permit the state to contradict his denial by evidence of another and distinct offense.
4. SAME--Alibi--Instruction. The defendant having offered some evidence to show that he was away from the neighborhood at and near the date fixed by the relatrix, an instruction upon that issue would have been proper.
5. SAME--Instruction. An instruction upon the law with relation to the period of gestation would not have been improper in this case.
6. SAME--Evidence in Rebuttal. There was no abuse of discretion or error in permitting the state to offer evidence to rebut the defense of an alibi.
William H. Thompson, Fred Robertson, both of Kansas City, J. P McLaughlin, of Osage City, F. S. Macy, and E. W. Davis, both of Liberal, for the appellant.
Clyde R. Commons, H. A. Gaskill, both of Liberal, and J. W. Davis, of Greensburg, for the appellee.
This is an appeal from the district court in a proceeding in which the defendant was found by a jury to be the father of the bastard child of the relatrix, Mattie Botts.
When her child was born Mattie Botts was but 14 years and 3 months old, and the defendant was then a boy just past the age of 17. Their families lived in the village of Arkalon, and had been neighbors and friends for many years; the Stout family running a store, over which they lived on Main street, in the rear of which was the Botts residence, facing another street.
The child was born March 4, 1915; the trial occurred on the 8th of June, 1915, and the relatrix testified that the only act of intercourse was in the first week of June, 1914, on the back porch of her home, in the evening, about dark, just after her mother had gone into the house.
1. After the jury had been impaneled and sworn and the opening statement of counsel had been made, the court's attention was called to the fact that no guardian ad litem had been appointed for the defendant, and the court thereupon appointed his father guardian. The first complaint of error is the failure to make this appointment before the trial commenced. The statute provides that if the infant be of the age of 14 years the appointment may be made upon his application within 20 days after the return of the summons, and that if he neglects to apply the appointment may be made upon the plaintiff's application. (Civ. Code, § 33.) It would seem in this case that the appointment was made as soon as the court's attention was called to the fact that defendant was a minor. It is inconceivable that any prejudice could have resulted to the defendant by the failure to make an appointment earlier. All of his rights were fully protected so far as a guardian ad litem could protect them.
2. One of the principal complaints is that the court abused its discretion in allowing the state to "make its case in chief" by rebuttal evidence. The state produced the evidence of the relatrix to show that the defendant was the father of the child, its birth, and also the testimony of the attending physician, and then rested. The defendant then offered evidence of contradictory statements made by Mattie Botts, which it was claimed showed that the defendant was not the father of the child; her association with other boys at and about the time the child must have been begotten; evidence to show the defendant's good reputation, and in support of an alibi.
The state then introduced evidence, first, to contradict the defense of an alibi, and, second, testimony which it is claimed was offered for the purpose of impeachment. The matter came about in this way: On cross-examination defendant was asked concerning a conversation he had with Sammie Smedley one night in the early part of June, 1914, after they had gone to bed, concerning defendant's sexual relations with Mattie Botts. The time, place, and conversation were called to his attention. He denied making any such statements. He was also asked concerning another conversation with Sammie Smedley and Johnnie Smedley at the Stout barn in June, 1914, which the state claimed referred to his relations with Mattie Botts. He denied having this conversation. At the close of defendant's testimony the plaintiff called Sammie Smedley, and he was asked to state if at the times and places mentioned these conversations occurred with defendant, the leading question being asked him in each instance, as to the words and language used by the defendant, and his answer to each of the questions was "Yes, sir." Both the Smedley boys were permitted to testify to a statement at Stout's barn, which the defendant had denied on his cross-examination. The defendant claims it was an abuse of discretion to permit the plaintiff to make its case in chief by the evidence of the Smedley boys in rebuttal. The state contends that the plaintiff was not making its case in chief by way of rebuttal, but was merely offering the evidence for the purpose of impeaching the defendant, and that the statements of the defendant in conversations wherein the name of the relatrix was mentioned were material and relevant to the issue. On the other hand, the defendant insists that if they were relevant and material they should have been offered in chief, and, further, that when they were offered it was error for the trial court to refuse to permit him to offer evidence to show that the statements were never made.
In the prosecution of a criminal case, or in a bastardy proceeding which possesses many of the elements of a criminal proceeding, the state has the right to select the manner in which its proof shall be introduced, but it should put in all its evidence in chief before it rests. Evidence which would be admissible in chief can not ordinarily be introduced by way of rebuttal. Whether it is material error for the court to permit evidence in rebuttal which should have been introduced in chief depends, of course, upon whether the court has abused its discretion to the defendant's prejudice. It can not be doubted that while making its case in chief, the state might have proved the damaging statements claimed to have been made by the defendant or admissions of his guilt, and it necessarily follows that the orderly course of procedure was reversed in this case. The questions asked of the defendant were no part of his cross-examination, and could be asked only for the purpose of impeaching his credibility as a witness. It is claimed they were collateral and that the state was bound by his answers, but we think they were not collateral in so far as they tended to show admissions of his guilt. They were relevant and material and should have been offered by the state in making its case against the defendant before it rested. We think it very probable that the rights of the defendant may have been prejudiced in this instance, especially as the court refused to permit him to offer evidence in rebuttal. For instance, the defendant offered the testimony of Davie McKee relative to the statements made by the defendant in the conversation at the Stout barn, but the court sustained an objection on the ground that defendant had no right to offer any evidence in rebuttal, except to impeach the witnesses offered by the state. The objection should have been overruled.
An attempt to avoid the effect of this ruling is made in the briefs of the state on the ground that Davie McKee, in his affidavit filed in support of the motion for a new trial fixed the date of the conversation at the Stout barn as in July, 1914, while the Smedley boys testified that it occurred in June. From the affidavit of the witness McKee, there can be no question, we think, that this was the same conversation referred to by the Smedley boys; that it was the only time these...
To continue reading
Request your trial
-
State v. Burnett, 48132
...be ground for reversal unless it appears discretion has been abused to appellant's prejudice. (State v. Freeman, supra; State ex rel. v. Stout, 101 Kan. 600, 168 P. 853.) When a defendant takes the stand, he takes his character and integrity with him and cannot complain because he is subjec......
-
State v. Darling
...appellant argues on appeal that the state was bound by his answer, citing State v. Hays, 113 Kan. 588, 215 P. 1109, and State ex rel. v. Stout, 101 Kan. 600, 168 P. 853, and cases from other The record fails to disclose any objection to the rebuttal testimony of these two officers at the tr......
-
State v. King
... ... 767, 37 P. 174, syl. P 6, 37 P. 174; The State v ... Calhoun, 75 Kan. 259, 88 P. 1079; The State v ... Hansford, 81 Kan. 300, 106 P. 738; The State v ... Chance, 82 Kan. 388, 108 P. 789; The State v ... Wheeler, 89 Kan. 160, 165, 130 P. 656; The ... State, ex rel., v. Stout, 101 Kan. 600, 606, ... 168 P. 853; Smith v. Hern, 102 Kan. 373, 170 P. 990, ... and citations, 170 P. 990; The State v. Mathes, 108 ... Kan. 488, 196 P. 607; The State v. Ridgway, 108 Kan ... 734, 197 P. 199.) ... In ... The State v. Folwell, supra, where the defendants ... ...
-
State v. Blocker
...of this question depends on whether or not the defendant's right to a fair trial was substantially prejudiced. In State ex rel. v. Stout, 101 Kan. 600, 168 P. 853, the same point was raised. There, evidence which would have been admissible in chief was introduced by way of rebuttal, and the......