The opinion of the court was delivered by
Benson, J.:
The defendant was charged with statutory rape, and was convicted of an attempt to commit that offense. He complains of thé insufficiency of the information, and specifies alleged errors occurring on the trial.
The information charged that the defendant did “unlawfully, feloniously commit rape upon a female person under the age of eighteen years, to wit, ... by carnally knowing her, the said,” etc. The omission of the words “and unlawfully” after the word “carnally” [185]*185is the alleged defect relied upon. The word “unlawfully,” however, appears in the information. The offense was clearly and plainly charged, and the information was sufficient. (Gen. Stat. 1901, §§ 5550, 5551.)
The defendant also complains of the admission of' testimony tending to show prior undue familiarity on the part of the defendant with the prosecutrix. The-evidence was properly received (The State v. Borchert, 68 Kan. 360, 74 Pac. 1108), and its purpose and effect were clearly stated in the instructions.
Numerous assignments of error are predicated upon the admission of testimony of the complaints of the prosecutrix concerning the violation of her person. The competency of such complaints in cases of this character was referred to in The State v. Daugherty, 63 Kan. 473, 65 Pac. 695, and The State v. Oswalt, 72 Kan. 84, 82 Pac. 586. The complaints'testified to were-first made to a girl friend who was close at hand and to defendant’s wife quite soon after the alleged occurrence, and to the sister of the prosecutrix on the following night. These consisted of charges of improper liberties — acts admitted by the defendant when the girl related them to his wife, and related also in his testimony on .the trial; so, if erroneously admitted, the testimony so far was not prejudicial.
Twelve days after the day on which she said the offense was committed she was visited by Mr. Enns, a. justice of the peace, and Mr. Jones, a friend who accompanied the officer. The justice called, it seems, to take her complaint as the basis of the criminal prosecution which followed. Mr. Jones testified concerning-this interview that he assisted in obtaining the information and making it possible to write the complaint. He further testified:
“Ques. And after you had a talk with her, then was. there anything written? Ans. There was.
“Q. Where was that written ? A. It was written in. the justice of the peace’s office.
“Q. Was that after you had been to the Kaufman-[186]*186home. A. If it is proper I will state it in a few paragraphs. . . . After I was at the house ?
“Q. Yes, sir. A. I went first to the justice’s office.
“Q. You say you saw a paper written up. A. Yes, sir.
“Q. After you saw that paper written up, were you at the Kaufman house after that? A. Yes, sir.
“Q. Did you see some paper there? A. Yes, sir.
“Q. Did you hear it read to Lulu Kaufman? A. Yes, sir.”
“Q. You had no further conversation with her and Mr. Enns after that? A. We had some more talk.
“Q. Did you refer their question after that talk, or was there any more written down? A. There was more written down.
“Q. Who did the-writing? A. Mr. Enns.
“Q. In whose presence was it done ? A. In my presence and Lulu’s. .
“Q. Was. that an additional writing to the first paper ? A. It was in the one.
“Q. Do you know whether or not Lulu Kaufman signed that last paper? A. She did sign it.
“Q. I will ask you, if you know, whether she was sworn to it or not? A. It was sworn to.”
Mr. Enns, the justice, testified that he went to the home of the prosecutrix with Mr. Jones and saw Lulu there, her mother being present part of the time; that he was there half an hour and then went to his office and wrote a paper, and then went back and saw Lulu and Mr. Jones the second time; that Lulu did not sign the paper which he had written. The following testimony was then given by this witness:
“Ques. Did you have any conversation there at that time with Lulu? Ans. Yes, sir; there was a conversation.
“Q. Did you do anything after that conversation? A. Wrote a second paper.
“Q. Where did you write that — where were you when you did'the writing? A. I am inclined to think I wrote that right there, having a blank with me.
“Q. Who was present? A. Mr. Jones, I think, was ■nrpcip-nf
■ “Q. Who else? A. Lulu.
[187]*187“Q. This second paper was written, was it, then signed up? [No reply.]
“Q. Do you remember now whether you administered the oath there? A. Yes, sir; she signed it and swore to it.”
Neither Mr. Jones nor Mr. Enns was cross-examined. The girl, Lulu, was then recalled, and testified concerning the same interview as follows:
“Ques. You remember the circumstances of their visit there that Monday, do you? Ans. Yes, sir.
“Q. That was the Monday after you had seen Mr. Jones at the Sunday-school on Sunday? A. Yes, sir.
“Q. You remember the paper they presented to you, the first paper? Did they show you a paper when they came there ? A. I think so.
“Q. When did they show you a paper — the first or second time they came? A. I think the second time.
“Q. I want to ask you which conversation it was that you had with Mr. Jones or Enns that morning that you told them all of this, whether it was the first conversation or second time they were there ? A. The second time.”
Before being recalled Lulu had testified that she had told two things before, but had not told it all; that she told it all first to Mr. Jones. What she had first told related to certain indecent liberties, but involved no charge of intercourse. It seems that this latter charge was the one referred to when she said that she “told it all” to Jones. This appears sufficiently by inference from the whole examination, and was testified to by her on cross-examination. On redirect examination she was permitted to say that the reason she had not told it all to Mrs. Hoskinson and to her sister and mother was becáuse she was ashamed and afraid to do so. The testimony of Jones, Enns and Lulu, purporting to relate what Lulu had told them, and copied above, was given over the defendant’s objection. It appears from the abstract that the county attorney in his argument to the jury commented on what the'prosecuting witness had told Jones about the affair, and that upon objection by [188]*188defendant’s counsel the court “sustained thé above objection . . . and instructed the jury not to consider the statements of the county attorney ais to statements of Lulu and Jones not in the record in this case.”
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The opinion of the court was delivered by
Benson, J.:
The defendant was charged with statutory rape, and was convicted of an attempt to commit that offense. He complains of thé insufficiency of the information, and specifies alleged errors occurring on the trial.
The information charged that the defendant did “unlawfully, feloniously commit rape upon a female person under the age of eighteen years, to wit, ... by carnally knowing her, the said,” etc. The omission of the words “and unlawfully” after the word “carnally” [185]*185is the alleged defect relied upon. The word “unlawfully,” however, appears in the information. The offense was clearly and plainly charged, and the information was sufficient. (Gen. Stat. 1901, §§ 5550, 5551.)
The defendant also complains of the admission of' testimony tending to show prior undue familiarity on the part of the defendant with the prosecutrix. The-evidence was properly received (The State v. Borchert, 68 Kan. 360, 74 Pac. 1108), and its purpose and effect were clearly stated in the instructions.
Numerous assignments of error are predicated upon the admission of testimony of the complaints of the prosecutrix concerning the violation of her person. The competency of such complaints in cases of this character was referred to in The State v. Daugherty, 63 Kan. 473, 65 Pac. 695, and The State v. Oswalt, 72 Kan. 84, 82 Pac. 586. The complaints'testified to were-first made to a girl friend who was close at hand and to defendant’s wife quite soon after the alleged occurrence, and to the sister of the prosecutrix on the following night. These consisted of charges of improper liberties — acts admitted by the defendant when the girl related them to his wife, and related also in his testimony on .the trial; so, if erroneously admitted, the testimony so far was not prejudicial.
Twelve days after the day on which she said the offense was committed she was visited by Mr. Enns, a. justice of the peace, and Mr. Jones, a friend who accompanied the officer. The justice called, it seems, to take her complaint as the basis of the criminal prosecution which followed. Mr. Jones testified concerning-this interview that he assisted in obtaining the information and making it possible to write the complaint. He further testified:
“Ques. And after you had a talk with her, then was. there anything written? Ans. There was.
“Q. Where was that written ? A. It was written in. the justice of the peace’s office.
“Q. Was that after you had been to the Kaufman-[186]*186home. A. If it is proper I will state it in a few paragraphs. . . . After I was at the house ?
“Q. Yes, sir. A. I went first to the justice’s office.
“Q. You say you saw a paper written up. A. Yes, sir.
“Q. After you saw that paper written up, were you at the Kaufman house after that? A. Yes, sir.
“Q. Did you see some paper there? A. Yes, sir.
“Q. Did you hear it read to Lulu Kaufman? A. Yes, sir.”
“Q. You had no further conversation with her and Mr. Enns after that? A. We had some more talk.
“Q. Did you refer their question after that talk, or was there any more written down? A. There was more written down.
“Q. Who did the-writing? A. Mr. Enns.
“Q. In whose presence was it done ? A. In my presence and Lulu’s. .
“Q. Was. that an additional writing to the first paper ? A. It was in the one.
“Q. Do you know whether or not Lulu Kaufman signed that last paper? A. She did sign it.
“Q. I will ask you, if you know, whether she was sworn to it or not? A. It was sworn to.”
Mr. Enns, the justice, testified that he went to the home of the prosecutrix with Mr. Jones and saw Lulu there, her mother being present part of the time; that he was there half an hour and then went to his office and wrote a paper, and then went back and saw Lulu and Mr. Jones the second time; that Lulu did not sign the paper which he had written. The following testimony was then given by this witness:
“Ques. Did you have any conversation there at that time with Lulu? Ans. Yes, sir; there was a conversation.
“Q. Did you do anything after that conversation? A. Wrote a second paper.
“Q. Where did you write that — where were you when you did'the writing? A. I am inclined to think I wrote that right there, having a blank with me.
“Q. Who was present? A. Mr. Jones, I think, was ■nrpcip-nf
■ “Q. Who else? A. Lulu.
[187]*187“Q. This second paper was written, was it, then signed up? [No reply.]
“Q. Do you remember now whether you administered the oath there? A. Yes, sir; she signed it and swore to it.”
Neither Mr. Jones nor Mr. Enns was cross-examined. The girl, Lulu, was then recalled, and testified concerning the same interview as follows:
“Ques. You remember the circumstances of their visit there that Monday, do you? Ans. Yes, sir.
“Q. That was the Monday after you had seen Mr. Jones at the Sunday-school on Sunday? A. Yes, sir.
“Q. You remember the paper they presented to you, the first paper? Did they show you a paper when they came there ? A. I think so.
“Q. When did they show you a paper — the first or second time they came? A. I think the second time.
“Q. I want to ask you which conversation it was that you had with Mr. Jones or Enns that morning that you told them all of this, whether it was the first conversation or second time they were there ? A. The second time.”
Before being recalled Lulu had testified that she had told two things before, but had not told it all; that she told it all first to Mr. Jones. What she had first told related to certain indecent liberties, but involved no charge of intercourse. It seems that this latter charge was the one referred to when she said that she “told it all” to Jones. This appears sufficiently by inference from the whole examination, and was testified to by her on cross-examination. On redirect examination she was permitted to say that the reason she had not told it all to Mrs. Hoskinson and to her sister and mother was becáuse she was ashamed and afraid to do so. The testimony of Jones, Enns and Lulu, purporting to relate what Lulu had told them, and copied above, was given over the defendant’s objection. It appears from the abstract that the county attorney in his argument to the jury commented on what the'prosecuting witness had told Jones about the affair, and that upon objection by [188]*188defendant’s counsel the court “sustained thé above objection . . . and instructed the jury not to consider the statements of the county attorney ais to statements of Lulu and Jones not in the record in this case.”
The complaints of the injured female in trials -for cómmdn-law rape are admitted upon thé thédry that if shé made no complaint of such án outrage hér silence would naturally be construed as evidence that it had not occurred. The prosecution is allowed to foíéstall this presumption by showing that she did not remain silent. (2 Wig. Ev. § Í135.) This rule admits, m the first instance, the complaint mérely; the detail's aré excluded. (3 Greenl. Ev., 16th éd., § 213.) Somé courts have admitted a full relation of the detáils tdld by the prosecutrix, but thé weight of áuthority admits only the fact that a comlaint was mádé; it is not permissible to relate the name of the person of whom she complained. (The State v. Daugherty, 63 Kan. 473, 65 Pac. 695.) A probable exception to this rule is where the complaint was made in such immediate relation with and séquencé td the' abt complained of as to be part of the res gestie, but that has no application here: In the base of ah adult person who had consented to the act a complaint would hot be expected^ and so it was said in the Daugherty case that-, the reason failing, the rule also fails. The reason, however, does not fail where outrages are chárged upon children of tender age; For such children to make complaints of such abuse to their mothers or others in whom they confide is natural, and testimony that they did so may properly be admitted, in the discretion of the cohrt, in view of the age and.intelligence of the child, and the time when and the circumstances under which the complaints were made, having regard to the reason upon which the rule rests. This child was thirteen years of age, and the ruling of the court admitting testimony of her complaints would be approved if such testimony had been limited to the fact that she did so complain; but by permitting evi[189]*189dence of her statements upon which the affidavit for the •defendant’s arrest was prepared, and that she then, to use her own expression, repeated by witnesses, “told it .all,” the court erred to the prejudice of the defendant, and this was made more harmful by the fact that the county attorney in his argument referred to this as evidence supporting the principal charge. The ruling •of the court in withdrawing from the jury the statements of the county attorney not in the record did not prevent the jury from considering this improper testimony, for it was in the record. It is urged that in view of the defendant’s admissions no prejudice resulted from this evidence. His admissions, however, only related to the charges of undue liberties which the prosecutrix first made to Mrs. Hoskinson and others, and not to the final charge related to Enns and Jones — a charge which, it seems, was not made spontaneously and naturally from a sense of outrage, but only after diligent inquiry and examination by the witnesses. This inT quiry was properly made in order to prepare the formal complaint for a public prosecution, but was inadmisT sible as evidence on the trial.
The judgment is reversed, and the case remanded for a new trial.