State v. Whiting
| Decision Date | 24 January 1953 |
| Docket Number | No. 38602,38602 |
| Citation | 173 Kan. 711,252 P.2d 884 |
| Parties | STATE v. WHITING. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. In a prosecution for lascivious behavior, the entire record is examined and it is held the evidence supported a verdict of guilty.
2. In an action such as that described in the foregoing paragraph of this syllabus, two little girls, aged eight and six, were permitted to testify to similar actions committed with them by defendant other than the one for which he was on trial--Held (a) the evidence was competent as tending to prove the lustful nature of defendant; (b) the question of whether these witnesses were disqualified on account of their age was for the discretion of the trial court.
3. In a prosecution such as that described in the first paragraph of this syllabus certain witnesses were not sworn before they testified. The defendant did not object to this, did not make it one of his grounds for a new trial and raised it for the first time in his brief in this court--Held the objection should have been made when the witnesses testified and should have been called to the trial court's attention in the motion for a new trial.
4. In a prosecution such as that described in the first paragraph of this syllabus the defendant was convicted on the first count for lascivious behavior and acquitted on the second count of assault and battery--Held the acquittal on the second count did not operate as an acquittal on the first.
5. The complaint charged defendant with lascivious behavior and he was found guilty of 'lewd conduct' as charged in the first count--Held no error.
6. The defendant put on witnesses who testified that his reputation as a peaceable law abiding citizen was good, the state in rebuttal introduced a witness who testified that his reputation for chastity and morality was bad-- Held no error.
Joe W. Moss, of Independence, argued the cause, and John F. O'Brien, of Independence, was with him on the briefs, for appellant.
Glenn T. Crossan, Deputy County Attorney, of Independence, argued the cause, and Harold R. Fatzer, Atty. Gen., and Roy Kirby, County Attorney, of Coffeyville, were with him on the briefs, for appellee.
The defendant was charged with lascivious behavior in one count and assault and battery in the second count. He was convicted on the first count. He appeals.
At the close of the evidence the defendant filed a motion for a new trial on ten grounds. It was denied. The specifications of error were that the trial court erred in overruling the motion for a new trial; that the verdict was contrary to the evidence; erroneous rulings in regard to the admission of evidence; abuse of discretion; defendant was found guilty of an act with which he was not charged; the verdict was inconsistent; admission of illegal testimony; and the verdict was contrary to law.
Defendant in his brief states the question as follows: Does the record as a whole support a finding that the defendant was guilty of an offense; did the court err in admitting the evidence of Terry Nice and Penny Peterson and in refusing to strike their testimony; did the failure of the jury to convict under the second county operate as a discharge under the first count; was the verdict responsive to the crime charged; did the court err in regard to the admission of Ella Biggerstaff; did remarks of the county attorney during the closing argument prejudice the rights of defendant?
Defendant first argues the record as a whole did not support the finding the defendant was guilty of any offense. In this argument defendant really asks us to reexamine the evidence and reach a conclusion other than was reached by the jury. The acts with which defendant was charged were alleged to have taken place on the person of a seven-year-old girl in a garage in the daytime while other people were in the immediate vicinity. On this question defendant does not favor us with any authorities. We doubt if any could be found. The little girl testified to the acts of defendant. Her testimony constituted substantial evidence of the guilt of the defendant. The defendant did not ask to be discharged at the close of the state's evidence. One of the grounds for a new trial was that the verdict was contrary to the evidence. There was ample evidence to warrant the trial court in concluding that ground was not good.
The next question argued by defendant was that the trial court erred in admitting the testimony of Terry Nice and Penny Peterson. These were two other little girls, one eight and the other six years old. They both testified without objection to character of evidence to similar acts committed against them some months before. Defendant argues this evidence was not admissible because it tended to show that he had committed another crime unconnected with the one for which he was on trial. All concede such to be the general rule. The exceptions to it, however, are entitled to as much weight as the rule itself. One of these exceptions is that when a defendant is on trial for a sexual offense similar offenses may be introduced for the purpose of showing the lustful disposition or nature of the defendant. See State v. Waldron, 118 Kan. 641, 236 P. 855; State v. Funk, 154 Kan. 300, 118 P.2d 562; State v. Jenks, 126 Kan. 493, 268 P. 850; also State v. Bisagno, 121 Kan. 186, 246 P. 1001. The testimony of these two witnesses was admissible under the above exception.
Under his argument on this question, defendant also maintains the little girls should not have been permitted to testify on account of their age. Here he relies on our statute which provides what persons shall be incompetent to testify. One of the sections is G.S.1949, 60-2805, second subparagraph. There it is provided:
'Children under ten years of age who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly.'
When the testimony of these witnesses was offered counsel for the state asked them preliminary questions touching their qualifications to testify. At the close of these preliminary questions counsel for defendant objected to it on the ground the witness had not shown herself qualified to answer as a witness. This objection was overruled in each case. Whether the witnesses appeared incapable of receiving just impressions of the facts was addressed to the discretion of the trial court. See State v. Gaunt, 98 Kan. 186, 157 P. 447; State v. Douglas, 53 Kan. 669, 37 P. 172; Devine v. Heckman, 121 Kan. 22, 245 P. 1037; also 58 Am.Jur. 97.
Under this heading defendant points out that these three witnesses were not sworn and argues the trial court erred in permitting them to testify. He points out G.S.1949, 60-2829. This section provides:
No one would argue that witnesses should not be sworn before being permitted to testify. The question we have here, however, is not so easy to answer. The defendant's objection to the little girl being allowed to testify was on the ground that she had not shown herself sufficiently qualified, to answer as a witness. This was not based on the fact that she had not been sworn but on her age. There was no objection based on the fact that she had not been sworn. At the close of the last one of these two witnesses to testify defendant moved that the testimony of both be stricken on the ground it was incompetent, irrelevant and immaterial and not tending to prove any of the issues in the case. This was based on the age of the witnesses and the fact that the testimony tended to prove another offense. The fact these witnesses had not been sworn was not called to the attention of the trial court. The fact was not amoung the ten grounds upon which the defendant asked for a new trial. This was not included among the specifications of error here. It is well settled that an alleged error to avail defendant must be called to the attention of the trial court and that court be given an opportunity to correct the error. Here there was a real question about the qualifications of these two witnesses on account of their age. This was explored thoroughly by counsel for both parties as well as the court. Thus it appears the only real question bearing on the admissibility of this evidence was presented to the trial court. This question of the failure to swear the witnesses was not presented. Every one connected with the case knows that if the court's attention had been called to it the court would have ordered them sworn. The defendant does not argue here that the failure had any bearing whatever on their testimony. In Murphy Mortgage Co. v. Epp, 99 Kan. 706, 162 P. 1170, 1171, we said:
We quoted Southern Railway Co. v. Ellis, 123 Ga. 614, 51 S.E. 594, where it was said:
'If the omission is...
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