State v. Wright

• Citation: 38 P.2d 135,140 Kan. 679
• Decision Date: 08 December 1934
• Docket Number: 31904.
• Parties: STATE v. WRIGHT. [*]
• Court: Kansas Supreme Court

38 P.2d 135

140 Kan. 679

STATE v. WRIGHT. ^[*]

No. 31904.

Supreme Court of Kansas

December 8, 1934

Syllabus by the Court.

In bastardy proceeding, error, if any, in sustaining objection to cross-examination question as to whether prosecutrix was not told to leave boarding house because she was having too many boy callers, held harmless, where prosecutrix had previously stated cause for leaving.

Error based on exclusion of evidence could not be considered where evidence was not brought into record (Rev. St. 1923 60--3004).

In bastardy proceeding, imposition of fine on defendant's mother for contempt of court while she was on witness stand held not to require order of mistrial nor prejudicially affect verdict.

In bastardy proceeding, fact that court instructed witnesses from whom defendant apparently hoped to elicit testimony that each had had sexual relations with prosecutrix about time child was begotten, that they could not be compelled to give testimony that might incriminate them, could not be reviewed where testimony excluded was not brought into record.

In bastardy proceeding, failure to instruct that jury should consider association of prosecutrix with other men at or near time child was begotten held not prejudicial error, where such instruction was not requested.

In bastardy proceeding, failure to instruct that defendant's failure to testify should not be considered by jury against him and that jury should disregard prosecuting attorney's comments thereon held not error.

In bastardy proceeding, prosecuting attorney may comment on defendant's failure to take witness stand in his own behalf.

In bastardy proceeding, evidence held to sustain verdict against defendant.

Weight of evidence is not amenable to appellate review except in cases where determinative evidence adduced is documentary or otherwise of such character that its probative weight can be as accurately appraised in Supreme Court as by local triers of fact.

In bastardy proceeding, judgment requiring defendant, found to be father of child, to pay $280 in cash and $20 per month until child attains age of 18 years, held not excessive.

The record of a bastardy proceeding examined and held:

(1) Error based on limiting the cross-examination of the prosecutrix considered and not sustained.

(2) Error based on exclusion of evidence touching the financial worth of defendant's father and of efforts to induce a financial settlement of this cause held not open to review.

(3) The imposition of a fine on defendant's mother for contempt of court, while she was on the witness stand, did not require an order of mistrial nor prejudicially affect the verdict of the jury.

(4) The trial court's admonitory caution to three of defendant's witnesses that they need not answer questions which might tend to incriminate them considered, and held not open for appellate review.

(5) Error based on the omission of the trial court to give certain instructions to the jury considered and not sustained.

(6) The prosecuting attorney's comment on defendant's failure to take the witness stand in his own behalf was within the limits of fair debate, and no error can be predicated thereon.

(7) The verdict was sustained by sufficient evidence; and the question involved in the weight of the evidence was exclusively addressed to the determination of the triers of fact.

(8) Error assigned on the excessive judgment considered, and prejudicial error not discerned therein.

Appeal from District Court, Sedgwick County, Division No. 2; Robert L. NeSmith, Judge.

Proceeding by the State against John Wright. From an adverse judgment defendant appeals.

A. M. Ebright and P. K. Smith, both of Wichita, for appellant.

Roland Boynton, Atty. Gen., Everett E. Steerman, Asst. Atty. Gen., and John W.

Wood, Co. Atty., and James B. Nash, Deputy Co. Atty., both of Wichita, for the State.

DAWSON Justice.

This was a proceeding under the statute to fasten parental responsibility on defendant for the maintenance and education of an illegitimate child born to Lucy Gresham, an unmarried girl 22 years old.

To the state's information defendant pleaded not guilty. The cause was tried before a jury. It was shown that the prosecutrix and defendant had resided in Cheney and had attended high school there. When they were about 20 years old, they began to indulge in sexual relations together. Later they attended different schools in Wichita, and the prosecutrix began to keep company to some extent with other boys, particularly Farrell Springer, William Kilgore, and Clyde Seydell. The child was begotten during the early part of 1932, and it was part of the defense that these persons were frequently with her during that period under circumstances which gave them equal opportunities to have carnal knowledge of her with that enjoyed by defendant. The prosecutrix swore that she never had sexual intercourse with anybody except defendant. She did, however, have a difficult time on cross-examination in attempting to explain the contents of a letter she wrote to defendant under date of 3/8/32 in which she assured him she was not enciente and that she had almost entirely quit sexual indulgence.

Defendant called Springer, Kilgore, and Seydell as witnesses. The record reads:

"Q. You may state your name. A. Farrell Springer.

"Q. Do you know Lucy Gresham? A. Yes, sir.

"Q. Did you know her during January, February and March of 1932? A. Yes, sir.

"Q. Did you ever have any dates with her? A. Several.

"Q. Did you ever have intercourse with her?

"The Court: Wait a minute. It is the court's duty to warn you, Mr. Springer, that anything you may say can be used against you. A. Yes, sir.

"The Court: Or, if you want to waive your constitutional right, you may proceed with the testimony.

"Prosecuting attorney: Tell him what his constitutional rights are.

"The Court: Your constitutional rights are that you cannot be compelled to give testimony against yourself or that might incriminate you. A. I refuse to testify then."

Similar incidents occurred in the examination of witnesses Kilgore and Seydell.

The mother of defendant was called as a witness, and testified that the prosecutrix had a bad reputation around Cheney. On cross-examination she engaged in a verbal fencing duel with the prosecuting attorney. The trial court admonished her repeatedly to confine her remarks to answering questions. The record, in part, reads:

"Q. Now you say her reputation in the community where she lives is bad. A. I said it was. ***

"Q. Now then give me the names of the people that say her reputation is bad. A. I said they were the people of Cheney.

"Q. Who are they? *** A. Well they are their neighbors and people in the town of Cheney.

"The Court: Do you know their names? A. I answered it.

"The Court: Mrs. Wright, you are fined $25.00 and you will have to pay it now.

"Counsel for defendant: The defendant objects to the statement of the Court and the County Attorney and the fining of this witness because it is uncalled for and prejudicial, and ask that this jury be discharged and this defendant in this case be dismissed.

"The Court: The motion is overruled. The defendant will take charge of the lady. We will have a few minutes recess."

After the recess, the court said to the jury: "The little incident that took place a while ago will not be considered by you as any evidence of the truth or falsity of the charges in the information; you will not consider that in arriving at your verdict in any manner whatsoever."

The jury returned a verdict that defendant was the father of the child. This was followed by a hearing before the court to determine the amount defendant should be adjudged to pay towards its maintenance and education. This was eventually fixed at $280 in cash and $240 per annum, payable monthly until November 14, 1950, at which time, the child, if then living, will be 18 years old.

Judgment was entered accordingly, and defendant was required to give bond in the sum of $2,000 to insure obedience to the judgment with the alternative of imprisonment in the county jail until such security be given, with the proviso that his incarceration in no event should exceed the term of one year.

Defendant appeals; assigning various errors which will be noted in the order of their presentation. Preliminary thereto his counsel invite this court to discuss the nature of a bastardy case, whether it is civil or criminal; but this subject has been so often treated by this and other courts that it would be a work of supererogation to undertake it anew. In re Bolman, 131 Kan. 593, 596, 598, 292 P. 790; 7 C. J. 966, 967; 3 R. C. L. 750, 751.

Error is assigned on the limitation placed upon the cross-examination of the prosecutrix where she was asked: "Did you leave there [her Wichita boarding house] because you were told to leave as you were having too many boys to see you?"

The prosecuting attorney's objection to this question was sustained on the ground that it was not proper cross-examination. Mayhap this objection was not good; but the error, if any, was harmless, because antecedent thereto. The record reads: "Q. What was the cause of your leaving there? (Objection overruled.) A. Because the woman told me she was going to California."

The next error urged pertains to a ruling of the court which prevented defendant from showing that his father was worth about $75,000; the object of such testimony being to show a possible motive on the part of prosecutrix for fastening the paternity of her child on this defendant. The court also sustained an objection to...