State v. Walke

• Decision Date: 09 April 1904
• Docket Number: 13,748
• Citation: 69 Kan. 183,76 P. 408
• Parties: THE STATE OF KANSAS v. WILLIAM WALKE
• Court: Kansas Supreme Court

76 P. 408

69 Kan. 183

THE STATE OF KANSAS v. WILLIAM WALKE

No. 13,748

Supreme Court of Kansas

April 9, 1904

Decided January, 1904.

Appeal from Cherokee district court; W. B. GLASSE, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAPE -- Showing of Pregnancy and Time of Birth Admissible. In a prosecution for statutory rape it is proper for the state to show that the prosecuting witness became pregnant and was delivered of a child at about the time when, if her testimony of the affair be true, it might have been expected.

2. EVIDENCE -- Expert. Expert evidence is admissible in proof of matters not clearly falling within the range of common experience or observation.

3. CRIMINAL PRACTICE -- Extent of Instructions Necessary--Code Construed. Notwithstanding section 236 of the criminal code (Gen. Stat. 1901, § 5681) directs that in criminal actions the judge charge the jury in writing, and in such charge state to them all matters of law necessary for their information in giving their verdict, the court does not err if it fail to give instructions upon all the minutiae of the case, but gives only such as fairly present the salient features arising upon the law of the case. This is especially so in the absence of any request for additional instructions.

C. C Coleman, attorney-general, Al. F. Williams, and Tracewell & Moore, for The State.

C. A. McNeill, and C. D. Ashley, for appellant.

CUNNINGHAM J. All the Justices concurring.

OPINION

CUNNINGHAM, J.:

Appellant was convicted of the crime of statutory rape, and appeals. The testimony of the prosecuting witness, that conception followed defendant's connection with her, and that she was delivered of a child at about the time such an event might have been expected, and of an attending physician, that he was present and assisted at such delivery, was admitted over the objection of the defendant that the same was incompetent, irrelevant, and immaterial. The court admitted it for the purpose of showing penetration. This was not error. It was clearly shown, and nowhere denied, that the prosecuting witness was unmarried and under the statutory age of consent; so the fact that she had become pregnant and was delivered of a child proved that some one had committed upon her the crime charged. For this purpose the criticized testimony was very competent, material, and relevant. ( People v. Flaherty, 27 A.D. 535, 50 N.Y.S. 574; State v. Robinson, 32 Ore. 43, 48 P. 357.)

The appellant was a man sixty-eight years old. His wife testified that he had lost virility to the extent that he was incapable of having sexual commerce with a woman. This she knew from her intimate relations with him. Upon rebuttal physicians were called and permitted to testify as experts that a man of that age who had lost sexual desire as to his wife might still have such desire and ability to consummate it upon other and younger women. We find no error here. The contention made was not one so clearly falling within the range of common experience and observation as to exclude expert evidence in proof of the same or that the jury might surely assume its truth without the evidence of an expert.

For his defense defendant relied in part upon an alibi. This his evidence did not go to establish with any high degree of certainty. He did not request the giving of any instruction to the jury specially calling their attention to this matter or specially explaining the law applicable thereto, and no such instruction was given. This omission is very strenuously urged as error. It is true that section 236 of the criminal code (Gen. Stat. 1901, § 5681) requires that the judge charge the jury in writing, and in such charge state to them all matters of law necessary for their information in giving their...