State v. Bonsor

Rape — Different Acts —Election by State — Evidence. At the trial of the appellant, who was charged with the crime of rape, by carnally knowing a female person under the age of 18 years, several different acts of unlawful intercourse were testified to by the prosecutrix. The state elected to rely on a particular act, and under this election it was the duty of the trial court to exclude from the consideration of the jury all testimony with reference to other acts that did not tend to directly prove the commission of the particular act relied upon by the state for conviction.

Appeal from Clay District Court. Prosecution for rape. From a verdict of guilty, at the March term, 1892, and a sentence to the penitentiary for a term of seven years, the defendant, Bonsor, appeals. The only witness on behalf of the state who pretended to know anything of importance about the real facts of the case was Annabel Duncan, the prosecuting witness. She testified that at a certain bridge near the town of Idana, in Clay county, on an evening about the middle of July, appellant had sexual intercourse with her. Upon this act of intercourse the state elected and relied for a conviction. Now, appellant claims that no testimony other than this was admissible, unless it tended to prove directly the truth or falsity of this particular act. Evidence of other crimes, is inadmissible unless the same have been committed in preparation for, the actual doing of, or in the concealment of the crime or its fruits. The State v. Boyland, 24 Kas. 186. In this case, the court permitted the witness to testify that at a former time, to wit, in the month of June, at a different place, appellant had intercourse with her. Can it be said that the act of intercourse at the house in June was in preparation for the act of intercourse under the bridge in July? Could the act in June be for the concealment of the crime in July or its fruits? The court also permitted said witness to testify that she was in a family way because of acts of intercourse with appellant prior to the act under the bridge, to wit, some time in June; and then allowed the state, after proving that conception had taken place — not by the act under the bridge, for which he was being tried, but by the former acts — to prove that appellant, subsequent to the act under the bridge, gave said witness certain drugs supposed to be of a nature to produce an abortion; also to prove by said witness that defendant gave her a certain instrument intended to be used in procuring an abortion. Now, such testimony could only be admissible on the theory that it was evidence of acts criminal in their nature done for the purpose of concealing either the crime itself or its fruits. Her being in a family way, however, was the result and fruits, if you please, of an act claimed to have been committed long before the act for which defendant was on trial. There is no claim that she conceived by the act under the bridge, and therefore all tjhis testimony about the oil of tansy, and the cotton root, and the instrument, was testimony of acts criminal in their nature, but committed, if at all, to conceal another and different act than the one for which defendant was on trial, and therefore, under the rule of this court, inadmissible. The State v. Boyland, 24 Kas. 186-188. The prosecuting witness testified that the first time she had sexual intercourse with appellant was at his house, about the 14th of June,' 1891, in a small bedroom occupied at the time by two beds, in one of which appellant and his wife slept, and in the other the prosecuting witness and appellant’s 12-year-old daughter; that under these circumstances appellant had full and complete intercourse with her; and that he remained in her bed for that purpose only two or three minutes. At this point it became highly material, as touching the credibility of the witness, for the jury to know whether or not she had ever had sexual intercourse with anyone prior to that time. The court erred in sustaining an objection to a question propounded to said witness on cross-examination by which it was sought to disclose that fact. Because of the admission of such evidence and the giving of the instructions based thereon, and the exclusion of evidence material to the rights of the appellant, we think that the case should be reversed, and a new trial granted. The state having introduced testimony to show that the defendant had sexual intercourse with Annabel Duncan on an evening about the middle of July, the court did not commit any error by admitting testimony showing that defendant had sexual intercourse with her prior to that time. It was admissible for showing the relation and mutual disposition of the parties. 1 Am. & Eng. Encyc. of Law, p. 214, and cases there cited. Without such evidence, no rational construction or interpretation could have been given to the conversation that took place between the defendant and Annabel Duncan at the bridge about the middle of July, as well as the notes that were by the defendant handed to her. “Evidence is admissible of improper familiarity and adultery between the parties, both before and after the commission of the offense.” 1 Am. & Eng. Encyc. of Law, p. 214, and cases there cited; Lawson v. The State, 56 Am. Dec. 182. Also, on a trial for rape the state may introduce evidence that the defendant had committed the crime on the same person at other times than that charged, and it is in the discretion of the court to compel the state to elect on which specific act it will rely for a conviction, which election should generally be made at the close of the state’s evidence. The State v. Parish (Sup. Ct. of N. C.), 10 S. E. Rep. 457, and authorities therein cited. See, also, Wills, Circ, Ev. (6th Am. ed.), pp. 238-240; Whar. Crim. Ev. (9 th ed.), §§45-47.