267 Mo. 49 | Mo. | 1916
Defendant, convicted in the circuit court of Stoddárd County for a violation of the provisions of section 4472, Revised Statutes 1909, for that he had carnal knowledge of a female under the age of consent, after the usual motions for a new trial and in arrest of judgment, has appealed.
The information upon which this prosecution is bottomed was filed on the 5th day of February, 1914. It charges the defendant with committing the alleged offense in March, 1913. Except in the behalf discussed in the opinion, the information is conventional and we need not cumber the record with the whole of
The facts in brief, so far as they are pertinent • and so far as we do not set them out in our opinion, run thus:
Defendant is a physician and surgeon now practicing in the city of St. Louis, but at the time of the alleged commission of the offense charged, engaged, a portion o£ his time at least, in practicing his profession in Stoddard County, Missouri, and having offices at one time or another both in Dexter and in Bloomfield - in that county. Defendant while practicing in Stoddard County seems to have specialized in the treatment of diseases of the eye and was thus brought professionally into contact with’the prosecuting witness, one Hattie Allard, aged at the time set out in the information, sixteen years, lacking a few days. Having been treated by defendant for an affection of the eyes while he was in Dexter, she followed him to Bloomfield for the purpose, as the record shows, of having the treatment continued. She remained in Bloomfield for some five weeks taking such treatment, and while thus under the care of defendant the first sexual act of •defendant with her took place in the latter part of March or the first days of April, 1913. From that time :on, until November, 1913, as occasion offered, other acts of sexual intercourse occurred between defendant and the prosecuting witness, the last act occurring in the room of defendant at a hotel in Dexter on Thanksgiving Day, 1913. While the prosecuting witness and defendant were in this room, the mother of the former, suspecting the relations existing, slipped into an adjoining room and overheard suspicious noises which she deemed to indicate that defendant and her claugh
. On cross-examination of the prosecutrix and likewise of her mother, who testified for the State, it was shown that for some five days after the mother had, as she says, caught her daughter and defendant in the compromising position mentioned, prosecutrix had continued to deny any illicit relations with defendant, and that it was not until the mother had slapped prosecutrix’s face repeatedly and otherwise physically maltreated her, that she confessed these relations.
The defense was not guilty in the broadest sense of the word, in this, that defendant denied ever having been intimate with prosecutrix and averred that the sole relation existing was that of physician and patient. The age of defendant is not definitely shown, but it is shown that he attended medical school four years prior to the year 1897 and that he graduated as, a physician and surgeon in that year. His general reputation for morality and chastity is shown by the record to be’ good and in no wise is this denied or controverted by the State.
Such' further facts as may be required to make clear the points discussed will be found set out in our opinion, at which place they may appositely serve to make clear our discussion of the questions mooted.
Defendant’s learned counsel concede that the cases of State v. O’Kelley, 258 Mo. 345, and State v. Gould, 261 Mo. 694, are against tMs contention, but they cite and quote at some length from Crain v. United States, 162 U. S. 625, and largely upon the authority of the latter case, insist that we were wrong in the 0 ’Kelley and Gould cases, and urge us to. overrule the latter cases and get back to the good old technical rule of other days. We are not disposed to overrule the holding made in the O’Kelley case for the reason so ably urged upon us by counsel, or for any other reason; especially since about the time the O’Kelley-case was ruled, the Supreme Court of the United States in an opimon in which all concurred, overruled the case of Crain v. United States, supra, cited to us and relied on by counsel. [Garland v. State of Washington, 232 U. S. 642; see, also, State v. Garland, 65 Wash. 666.] Hence, we disallow this contention.
“The purpose of this offer is to show that, as the witness has testified, her uncle came down there to Dexter and had a conference with her mother and her, respecting this case, with a view of her uncle g’oing .to St. Louis and getting a thousand dollars to settle the case. I expect to show that in pursuance to that conference, he did go to St. Louis and hunted up Doctor Allen, that he demanded a thousand dollars from him,, and Doctor Allen told him that he would have to see Mr. Mozley, his attorney at Bloomfield, and that he couldn’t discuss the matter with him. I expect to show that he came directly from St. Louis to my office and made the same demand on me; that he stated to me that if we would pay a thousand dollars, he would see that Miss Allard was not here for the trial; that if we would pay him a thousand dollars, he would take Miss Allard and go to Illinois and not appear at the trial of this case. I expect to show that I declined to do it and ordered him out of my office. ’ ’
Upon this offer the court again ruled that since ■“the State could not be bound by such' conduct on the part of the uncle or anybody else,” and the offering “had no tendency to prove or disprove any of the allegations charged in the information,” objection by the State to the offering would be sustained, and defendant again saved his exception. In this refusal to allow the defendant to investigate the alleged connection of prosecutrix and her mother, who was also a very damaging witness in the case, with the alleged acts of the uncle, we think the learned court nisi erred. This
The sole defense was that defendant had never had sexual intercourse with her. Upon this alleged truth and his good character he relied for -acquittal;, so, an inquiry into the motives if any, of those who appeared against him was peculiarly important in his defense. If prosecutrix’s uncle went to St. Louis and offered to compound this felony of his own accord and without the consent and concurrence of witnesses who appeared against the' defendant, then it follows of course that his acts — unless to impeach him should he become a witness in the case — are inadmissible for any purpose. But' if he went to see defendant to make this offer, with the con-sent and concurrence of prosecutrix and her mother, he became their agent on the ground, to mention no other, that all became co-conspirators and they are to be impeached by what he said or offered to do while endeavoring to carry through the common enterprise, just as though they had made the offer themselves. If the rule were otherwise compounders of felony and blackmailers need only to employ an intermediary in order to go unwhipt of justice. There are old cases which .seem to hold that even the prosecutrix would not be im
The point is made that the evidence is not sufficient to take the case to the jury. This point is not well taken. There was substantial evidence of guilt, and since' the weight and credibility of the evidence is for the jury and not for us, we are not disposed, nor have we the legal right to interfere. For the error noted let the case be reversed and remanded for a new trial. It is so ordered.