State v. Woods
| Decision Date | 03 May 1930 |
| Docket Number | 29,075 |
| Citation | 287 P. 248,130 Kan. 492 |
| Parties | THE STATE OF KANSAS, Appellee, v. DALE WOODS, Appellant |
| Court | Kansas Supreme Court |
Decided January, 1930.
Appeal from Kingman district court; GEORGE L. HAY, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
WITNESSES--Privilege of Wife--Duty of Court to Advise. Pending defendant's trial for the crime of statutory rape the defendant married the prosecutrix, after which, without objection by herself or by defendant, she took the stand as a witness for the state, but unexpectedly gave testimony in defendant's behalf which was completely at variance with what she had given at his preliminary examination; but later upon realization of the consequences of perjury she again took the stand and gave testimony which contributed largely to the verdict of defendant's guilt. Held, her evidence was competent, and the trial court was under no duty to advise her that she was not required to give testimony against defendant under the statutory rule, R. S. 62-1420.
J. N. Tincher, Don Shaffer, Rubert G. Martin and Mabel Jones Shaffer, all of Hutchinson, for the appellant.
William A. Smith, attorney-general, R. O. Mason, assistant attorney-general, and Paul R. Wunsch, county attorney, for the appellee.
The appellant was convicted of statutory rape, and appeals. After the prosecuting witness had given her testimony at defendant's preliminary examination, and shortly before his trial in the district court, he married the girl and now contends that it was error to permit her to testify against him. He cites the statute--
". . . No person on trial or examination, nor wife or husband of such person, shall be required to testify except as a witness on behalf of the person on trial or examination. . . ." (R. S. 62-1420.)
It does not appear, however, that the prosecuting witness claimed that privilege at the trial, and even defendant himself did not object to her testifying. On the contrary, in an effort to exculpate the defendant, when she was called as a witness for the state she voluntarily took the stand and repudiated the evidence she had given against defendant at his preliminary examination; but later the same day the prosecuting witness apparently became impressed with the fear of the possible consequences of her perjury and made a clean breast of it and gave testimony in harmony with what she had testified to at the preliminary examination.
It is contended that the prosecuting witness was "not given the protection" of the statute which relieves a wife of the requirement of testifying against her husband, and that "it was the duty of the trial court to advise this girl the prosecuting witness, of her statutory rights so that she would have been able to protect herself." Rights of the witness? Duty to protect the girl? She was not on trial. Nor is she complaining here that her rights were invaded. The statute does not say that a...
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