State v. Bonsor

by Simpson, C.: Charles Bonsor was convicted by the district court of Clay county of the crime of rape, by carnally knowing one Annabel Duncan, a female person under the age of 18 years. He appeals to this court, and for cause of reversal urges the admission of incompetent evidence against him by the trial court. At the trial, and after all the evidence had been introduced, the appellant moved the court to require the state to elect upon which one act of intercourse it would rely for conviction. Thereupon the state elected to rely upon the offense which occurred at the bridge, in July, 1891. The appellant then moved the court to strike out all the evidence with reference to the occurrence in June, and the testimony of a witness named John I. McClelland, and all the evidence of Annabel Duncan relating to the preparation of the instrument, and all her testimony relating to certain drugs. This motion to exclude evidence was overruled. It appears from the record, that the prosecuting witness had testified to acts of sexual intercourse with Bonsor at different times and places. She also testified that Bonsor had made and furnished her an instrument with which to produce a miscarriage after they had discovered that she was pregnant. She also testified that he had furnished her, at different times, ergot, spirits of turpentine, oil of tansy, and cotton root, and instructed her how to use them, with a view to produce such a result. It seems from the record, that the witness became pregnant by an act of intercourse that occurred prior to the particular act at the bridge, relied upon by the state. From this brief statement, it will be seen that the specific complaint made by the appellant is, that his motion ought to have been sustained because no testimony ought to have been admitted or considered unless it tended to prove directly the [762] truth or falsity of the act of intercourse at the bridge. The precise contention, therefore, is, that all the evidence tending to show other acts of intercourse than the one under the bridge, or tending to show that the prosecuting witness was pregnant as the result of preceding acts of intercourse, and all evidence tending to show that the appellant furnished an instrument and various kinds of medicine calculated to produce an abortion, are violations of the rule stated in the specific complaint. Conceding to the fullest extent the correctness of the rule, the inquiry remains as to the effect of the evidence complained of. It is obvious that the evidence complained of might be used for other purposes than that of an effort to establish the commission of various acts of unlawful intercourse. In some cases repeated acts reinforce the probability that the particular act relied upon was committed, and are strongly corroborative of the statement of the prosecuting witness with respect to the particular act/ Illustrations of this can be found in the case of The State v. Coulter, 40 Kas. 87, where, in a trial on the charge of violating the prohibitory liquor law, it is claimed that the liquor alleged to have been sold was not intoxicating, it is competent to show sales other than that’ upon which the state relies for conviction, to establish the purpose for which the particular sale was made, and even to show sales included in counts of which the defendant had been acquitted. But this is a felony^ and there may be doubts as to the application of the rule in the prohibitory cases to the facte, in this case showing several different acts of intercourse/Without further comment on the motion to exclude the several acts, we are constrained to say, in deference to well-settled principles, that when the state elected to rely for conviction on the particular act of intercourse, the appellant had the right to have all the testimony excluded that did not tend to directly prove the truth lof the charge of intercourse under the bridge, with the possible exception above noted, that of several acts as tending to corroborate the prosecuting witness. If all of these things complained of could be connected with the act under the bridge, [763] as preparation for the commission of the unlawful act, or as attempts to conceal its commission or consequences, they would be taken into consideration by the jury; but it is evident from the record that they were done for the purpose of concealing and avoiding the consequences of the commission of another and a prior unlawful act, and ought to have been excluded, on the motion of the appellant. They greatly tended, in our opinion, to influence the minds of the jury, and were undoubtedly greatly prejudicial in their effect*/ We recommend that the judgment of conviction be/reversed, and a new trial granted./ By the Court: It is so ordered. All the Justices concurring.