267 Mo. 33 | Mo. | 1916
This is a prosecution by information charging rape upon a female child under the
On the part of the State; Mabel Stuart, the prosecutrix, testified that about June 1, 1913, she was employed by defendant as a domestic in his home, and so continued until August 3rd of that year. During the first three weeks of her employment the defendant’s family was absent, and from the first night of her stay in his home, on until she left, he had sexual intercourse with her about each night, this continuing even after the return of his family. She testified that at that time she was not fifteen years old, her statement being that she did not reach that age until the following September. She stated that her information and knowledge relative to her age was obtained from her parents, and an entry in a book which had been treated as a family record. This book was produced and identified by her, but she stated that same had been changed. She was unable, however, to specify or point out any changes that had been made. therein, and finally admitted that she could neither read nor write. Her statement as to her age is not corroborated by any substantial testimony. Over the objections of defendant, she and one Doctor Jones were permitted to state.that she was then, at the time of the trial, pregnant.
The record discloses that the trial was had more than a year after she had arrived at the age of fifteen years, even according to her own statement of her age. She further testified that defendant was responsible for her pregnant condition, and that this was the result of his acts of intercourse with her.
On the part of the defendant the mother of prosecutrix testified that the girl was horn on the 1st day of September, 1897, and that at the time of the alleged acts of intercourse she was over fifteen years .of age. She further testified that she had recorded the age of
One Lewis, a neighbor of the Stuart family, testified that he knew the age of the prosecutrix by reason of his knowledge of the date of the birth of one of his own children, and that she was born in the year 1897, and was, as testified to by the mother, over the age of fifteen years at the time of the alleged assault.
An application for a continuance, which was made by defendant, and overruled by the court, sets up that the grandmother of prosecutrix, then sick and unable to attend the trial, would testify that the girl was bom in 1897.
Upon objections by the State, the court refused to admit in evidence the family record which both the prosecutrix and her mother had identified.
The views which wé entertain on certain legal questions presented by this record make unnecessary a more extensive statement of the facts.
OPINION
We have heretofore held that, absent an evident motive for a false accusation, a conviction for statutory rape may be sustained upon the uncorroborated testimony of the prosecutrix, but when we so declared
In the instant case the prosecutrix is not only not corroborated, but is contradicted by her mother and others by whom such a fact is generally and most satisfactorily proven. She says her information as to her age comes from her parents and- a family record. The mother repudiates her statements as to the information coming from her, and the court refused to admit in evidence proof of the other source from which she says her information is derived. This was offered by the defendant and excluded upon the State’s objection. The defendant’s offer, however, discloses that it too would have contradicted her. For the present we leave as open the question as to whether, under such circumstances, her uncorroborated and contradicted statement of her age would be sufficient to sustain a conviction.
Upon what theory the court excluded the family record, which had been duly identified, w-e are unable to perceive. The date of the birth of the prosecutrix and of her brothers and sisters had been duly and timely recorded therein, and prosecutrix based her knowledge of her age largely thereon. This document had been prepared and preserved as a family record and was a matter of pedigree. It was competent for three purposes: (1) It was evidence of her true age (State v. Neasby, 188 Mo. 467); (2) it was competent and all important as tending to show that her statement as to her age, based, as she said, upon this
For the errors heretofore pointed out the judgment is reversed and the cause remanded.