Wiebe v. Hudspeth

• Decision Date: 03 May 1947
• Docket Number: 36704.
• Citation: 180 P.2d 315,163 Kan. 30
• Parties: WIEBE v. HUDSPETH.
• Court: Kansas Supreme Court

180 P.2d 315

163 Kan. 30

WIEBE v. HUDSPETH.

No. 36704.

Supreme Court of Kansas

May 3, 1947

Rehearing Denied June 14, 1947.

Syllabus by the Court.

In a proceeding for a writ of habeas corpus, it is held: (1) that petitioner was properly charged with the crime of statutory rape in violation of G.S.1935, 21-424 in one count and incest in violation of G.S.1935, 21-906, in the second count of the same information; (2) the affidavits furnished by petitioner are examined in connection with affidavits furnished by the respondent, and in view of all the surrounding facts and circumstances the proof offered by the petitioner did not substantiate his claim of coercion at the time he pleaded guilty; (3) the accepting of a plea of guilty without corroborative evidence cannot be reviewed by writ of habeas corpus.

E. J Webber, of Topeka, for petitioner.

Harold R. Fatzer, Asst. Atty. Gen. (Edward F. Arn, Atty. Gen., on the brief), for respondent.

SMITH Justice.

This is an original petition for a writ of habeas corpus wherein petitioner asks that he be discharged from confinement in the penitentiary at Lansing, Kansas.

This petition was originally filed in the district court of Leavenworth county. It was heard there and a writ denied. Petitioner attempted to appeal but the appeal was not perfected in time and his motion that his appeal be considered as an original application in this court was granted. On motion of the petitioner an attorney was appointed to present the cause to this court. He has submitted a brief and abstract on petitioner's behalf. The application as presented by counsel presents three grounds: First, that the district court convicted petitioner upon repugnant and, therefore, void informations and that the sentences were, therefore, void; that he was deprived of due process of law and that he was placed in double jeopardy in contravention of section 10 of the Bill of Rights and that the court was without jurisdiction to pronounce the sentences; second, that the pleas of guilty were not binding upon the petitioner because they were obtained by means of threats and coercion by the county officials; third, that the alleged pleas of guilty were not binding upon petitioner because they were not substantiated by any other evidence. Respondent, the warden of the State Penitentiary at Lansing, in his return, denied all of the allegations of the petition and said that the petitioner was legally confined in the state penitentiary by virtue of a valid judgment and sentence under date of November 25, 1936 whereby the petitioner was committed in two separate cases each charging him with statutory rape and incest, which sentence had not expired at the time the return was filed.

True copies of the informations, journal entires and commitments were attached to the return.

Two informations were filed against the petitioner, each in two counts. The first information charged petitioner with statutory rape on the 15th day of April, 1935, upon one Rosa Wiebe, she being an unmarried female person under the age of eighteen years. The second count charged petitioner and Rosa Wiebe with incest, she being his daughter.

The journal entry for this case shows that the cause came on to be heard on November 25, 1936; that the state was represented by the county attorney and the defendant was present in person and by his counsel, C. C. Wilson; that he was duly arraigned, waived a jury trial and entered a plea of guilty to both counts of the information and announced he was ready to receive the sentence of the court; that the court sentenced him to be confined at hard labor at the state penitentiary for a period of not less than one year nor more than twenty-one years on the first count, and on the second count that he be confined at the same place for a period not exceeding seven years, and that the sentences on the two counts run consecutively.

The information in the second case was exactly like that in the first case except that the illicit acts were charged to have been committed with Opal Wiebe, who was also an unmarried female under the age of eighteen years and a daughter of petitioner. The sentence in the second case was identical with the one in the first case, but no reference was made to the sentence in the first case.

The petitioner was sentenced on November 25, 1936, and has been confined in the penitentiary since shortly thereafter.

We shall first consider the argument of counsel that the information in each case was void for the reason that each contained repugnant counts.

Counsel first argues that incest can be committed only by the concurrent consent of the man and woman; that in Kansas a female person cannot give consent if under the age of eighteen years--hence if petitioner committed statutory rape on his daughter he could not by the same act commit incest with her.

The court dealt with the general question in State v. Learned, 73 Kan. 328, 85 P. 293, 294. In that case the defendant was charged, together with his granddaughter, with incest in six counts. The defendant filed his plea in bar to the first five counts of the information on the ground that he had been previously acquitted of statutory rape upon the same granddaughter and that the two informations referred to the same acts of intercourse. The state filed an answer admitting the previous acquittal, but alleging that the two offenses charged were not the same either in law or in fact and that the only matter involved in the previous prosecution was whether the defendant had intercourse with his granddaughter within the time provided by the statute of limitations. The trial court sustained the defendant's demurrer to this answer and abated the action as to three of the counts and sustained his motion to quash the information as to the other three. The state reserved the question and appealed. The question raised was whether one act of intercourse could be the basis of two charges--statutory rape and incest--providing the other elements of each offense were present. The court said:

'The distinctive ingredient of the crime of incest is the relationship of the parties while the distinctive ingredient of the crime of statutory rape is the youthfulness of the female. The evidence necessary to convict of incest would not be sufficient to convict of statutory rape, as there need be no evidence as to the age of the female. On the other hand, evidence that would convict of statutory rape would not suffice to convict of incest as the relationship is wanting. Hence the crimes, although committed by the same act, are different crimes, and a prosecution for one is no bar to a prosecution for the other. State v. Patterson, 66 Kan. 447, 71 P. 860.'

Our statute on statutory rape is G.S.1935, 21-424. It provides, in part, as follows:

'Every person who shall be convicted of rape by carnally and unlawfully knowing any female person under the age of eighteen years shall be punished by confinement and hard labor not less than one nor more than twenty-one years * * *'.

Our statute on incest is G.S.1935, 21-906. It provides as follows:

'Persons within the degrees of consanguinity within which marriages are by law declared to be incestuous and void, who shall intermarry with each other, or who shall commit adultery or fornication with each other, or who shall lewdly and lasciviously cohabit with each other, shall upon conviction be punished by confinement and hard labor not exceeding seven years.'

In State v. Patterson, 66 Kan. 447, 71 P. 860, 862, the defendant was charged with embezzlement while he was city clerk. On his trial he filed a plea in bar and alleged that he had previously been acquitted of forgery of the city's records and that the two offenses were identical. The trial court overruled the plea. After conviction and on appeal this court made an exhaustive examination of the subject of identity of offenses. In the course of the opinion it was said:

'The statute defining one crime punishes the falsification of records of business transactions. That is the substantive offense. The statute defining the other crime punishes the conversion of money. That is the substantive offense. Each statute relates to a separate criminal act. The issues to be tried in each case are not identical. Neither offense includes the other offense. In each case some act which constitutes an indispensable element of the crime is necessary, which is different from any act required by the other. All the evidence necessary to prove the receipt and conversion of money with intent to defraud would not establish the making of false entries with intent to defraud, and all the evidence necessary to prove the forging of entries of accounts would not prove the receipt and conversion of money.'

In State v. Learned, supra, the defendant made the same argument petitioner makes here, namely that since an ingredient of the offense of incest was consent and since under our statutes a female under the age of eighteen could not give her consent to intercourse, then one could not be guilty of incest and statutory rape with the same female. The court passed over the question of whether under our statutes joint consent of both parties was necessary to constitute the crime of incest. The court then said:

'The inquiry then arises, can a girl under the age of 18 years consent to an act of sexual intercourse, with one within the degrees of relationship within which marriage is incestuous and void, and thus become guilty of incest? If not, why not? There is no statutory provision and no common-law rule to the contrary. Section 2016, General Statutes of 1901, commonly called the age of consent law, simply provides that, 'every person who shall be convicted of rape, either by

...