State v. Stroble, 37818

• Decision Date: 06 May 1950
• Docket Number: No. 37818,37818
• Citation: 169 Kan. 167,217 P.2d 1073
• Parties: STATE v. STROBLE.
• Court: Kansas Supreme Court

Page 1073

217 P.2d 1073

169 Kan. 167

STATE v. STROBLE.

No. 37818.

Supreme Court of Kansas.

May 6, 1950.

Syllabus by the Court.

1. A complaint under G.S. 1935, 21-950, charging the offense of disturbing the peace in the language of the statute is sufficient.

2. In an appeal where defendant's case was tried by the court without a jury and he was convicted of disturbing the peace on five separate counts, the record is examined and it is held: The evidence of the state is sufficient to sustain the court's findings on each count of the complaint.

John S. Haney, of Leavenworth, argued the cause and was on the briefs for the appellant.

James N. Snyder, Assistant County Attorney, Leavenworth, argued the cause, and Harold R. Fatzer, Attorney General, C. Harold Hughes, Assistant Attorney General, and Col. H. Boone, County Attorney, Leavenworth, were with him on the briefs, for the appellee.

WERTZ, Justice.

This is an appeal by defendant from a conviction on five separate counts of disturbing the peace. The defendant on various dates between November 29 and December 17, 1948, while riding along the Leavenworth city streets in an automobile, approached, talked to, and made attempts to pick up various school girls between the ages of ten and thirteen years, by soliciting them to get in the car and show him where certain school buildings were located or to get in the car and he would take them to their destinations. When his offer was refused, as it was in each instance, he would either follow the girl or reiterate his offer to give her a ride.

The complaint as originally filed in the Leavenworth City Court contained ten counts, and defendant was there found guilty on counts 1, 2, 4, 5, 6, 8 and 10. On appeal to the district court, defendant entered a plea of not guilty, waived a jury and consented that the case be tried by the court; and was found guilty on counts 1, 2, 4, 5 and 8. The pertinent part of count 1 of the complaint reads:

'John H. Murray, County Attorney, being duly sworn says that at said county and state aforesaid, on or about the 17th day of December, A.D. 1948, the said * * * [defendant] * * * then and there being did unlawfully and wilfully disturb the peace and quiet of Freda Adams and of the neighborhood.

'All of which the said * * * [defendant] * * * did in violation of the laws of Kansas.'

Counts 2, 4, 5 and 8 were drafted in the same manner except as to the date the alleged act was committed and the name of the school girl whose peace and quiet was disturbed; and counts 4, 5 and 8 did not contain the words 'and of the neighborhood' at the end of the first paragraph.

The facts as to each count as adduced by the evidence may be briefly stated.

Count 1: On December 17, 1948, Freda Adams, 13 years of age, was accosted by the defendant while alone on her way to school. He inquired where she was going and offered her a ride, but she kept on walking; shortly thereafter he again drove up and offered her a ride and opened the car door, then drove away as police came on the scene.

Count 2: On November 29, 1948, Barbara Reed, 11 years of age, while alone on the way to school, was accosted by the defendant. He called to her and asked if she wanted a ride; she did not answer, and defendant drove on. After she had walked two blocks farther, defendant drove past again; he said his name was 'Benny', asked her name, and if she wanted a ride. She told him she did not want a ride; he said, 'You might as well come on', but she refused and walked hastily on south. Defendant opened the car door when he asked her to ride the second time. He was alone in the car, and she had never seen him before.

Count 4: On November 28, 1948, Dee Ann Jess, age 12 years, while walking alone on her way from school, was accosted by the defendant. He drove his car to the south side of Vine Street and as he did so she crossed to the north side of the street to avoid him; the defendant then drove his car to the north side of the street and stopped and inquired of her where the Third Avenue School was; she directed him and he said, 'hop in and show me the way'. She replied, 'No, my mother doesn't want me to and I will walk on', which she did, and again defendant stopped her and asked where the Sacred Heart School was and she gave him directions. He drove to the corner, stopped his car and looked back. She became frightened and started to run. She had not seen the defendant before that day.

Count 5: On December 1, 1948, Marcia Holman, age 10, walking alone on the way to school, was accosted by the defendant and asked to show him the way to the Third Avenue School. She pointed in out to him, and he said, 'Well, would you ride and show me?' She refused and continued walking She had never seen the...