The Saline County journal. [volume] (Salina, Kan.) 1871-1893, 1892-11-03

ment common in al civilized countries.
That section of the constitution probably,
however, relates to the kind Of punishment
to be inflicted, and not to is duration. Al.
though the punishment in this case may be
considered severe, and much severer indeed
than the punishment for ofenses Of much
greater magnitude, q adultery, or sexual in
tercourse coupled with seduction, yet ne
cannot say that the set providing for il is un-
constitutional OF void.
II d also claimed on the part Of the de-
PENDANT that the informatiou does not charge
Q public olfense and this for the reason tina,
!, does not charge that the proseeutri1, Lo,tie
Linden, was not the wife Of the defendant
Nov while IL does not in terms charge any
such thing, yet IL does 30 by the elearest of
implications. II charges As follows:
"That on or about the 18th day of May,
1859, in said county of Norton and State of
Kansas, one Charles w. White did then and
there unlawfully and feloniously commit the
crime Of rape, BY then and there unlawfully,
feloniously and carnally moving one Lottie
Linden, she, the said Lottie Linden, then
and there being Q female under the age of
eighteen years; contrary to the form OF the
statute in such case made and provided, and
against the peace and dignity Of the State Of
Kansas"
Nov II Lottie Linden had been the wife Of
the defendant Charles w. White, her name
would have been White; and the intercourse
charged would not have been "crime" or
"rape," nor committed "unlawfully and
feloniously" Is charged and other matters
are also charged which could not have been
true II Lottie Linden had been the wife Of
the defendant. The charge is for con
structive rape, and Is stated substantially in
the language Of the statute, and in . prose
eution for rape Il was never necessary to
state that the persoa ravished was not the
wife Of the defendant.
II Is further claimed on the part of the de-
PENDANT, that the court below ened In sus-
tanning demurrer by the State 10 portion
Of the defendants plea in abatement. The
prosecution was upon an informstioa fled BY
the county attorney, and the oaense charged
therein was and is . felony. The second
paragraph Of the plea in abatement reads as
follows:
"Def, ndant says that at the date of fling
the information in this cause he was not 4
fugitive from the Justice of the State of Kan
sas, nor had he been at any time such fugi-
tive. Defendant further says that no pre-
liminary examination has ever At any time
been given him in this action, nor did he at
any time waive such preliminary examina
ton"
The State demurred to this paragraph Of
the plea in abatement, upon the ground that
il did not state facts sufficient to entitle the
defendant to q hearing thereon; and the
court below sustained the demurrer. II
seems to be understood, however, that the
demurrer was sustained only as to the first
sentence of the second paragraph, but
whether il was sustained only as to the first
sentence of the paragraph or as to the whole
of the sane, We think the ruling was and is
erroneous. II was necessary that the whole
of the paragraph should be true in order to
entitle the defendant to have the action
sbated. 1t was necessary for the abatement
of the action that he should not have been
fugitive from justice, that he should not have
had preliminary examination, and that he
should not have waived the same; and strik-
ing on, the first sentence of the paragraph,
which alleged that he was not a fugitive