Prosecution for statutory rape alleged to have been committed upon one Naomi Head-rick, a female child under the age of fourteen years. The prosecution is based upon an indictment presented
The case came on for trial in the circuit court of said Carter county at the April term and on the 10th day of April, 1912. The defendant was duly arraigned and entered a plea of not guilty. Thereupon, the case was submitted to a jury, which jury in due course returned a verdict of guilty against the defendant and assessed his punishment at imprisonment in the penitentiary for a term of ten years. Timely mo
The testimony and other matters proper therein were preserved by a timely bill of exceptions, which ■was duly and legally made a part of the record, and which is before us. From this bill of exceptions the facts shown by the testimony upon the trial seem to be substantially these:
Naomi Headrick, upon whom ■ the rape was charged to have been committed, was the step-daughter of the defendant and resided with defendant and defendant’s wife, who was the mother of said Naomi, on a farm in Shannon county, Missouri. Said Naomi
Dr. O’Dell, a witness for the State, testified that on the morning of August 20, about the middle of the day, he saw the girl-Naomi professionally; found her suffering with an acute gastric disturbance of the stomach and bowels, indicating a cholera morbus condition, accompanied by vomiting and purging; that she was about five months advanced in pregnancy; but that he is not, and says that he could not be, certain as to the exact time. This witness saw her again on August 23 and found- her bordering on peritonitis. He again saw her on August 25 and discovered that she had miscarried late in the afternoon of August 23; that she then had (that is, on August 25) a well-
Dr. Chilton, a witness for the State, testified touching a consultation that defendant had with him as to the condition of Naomi; in this conversation defendant spoke of a swelling or dropsical condition from which she was suffering, stating to the doctor that this condition had existed for some four or five months, and that it had come on gradually. Being asked as to the girl’s monthly periods, he stated that there had been five or six months during which these had not occurred, hut that prior to that time' she had been regular; defendant stated to this physician that his wife thought perhaps the girl was pregnant, but that he (defendant) didn’t know anything about it. Questioned by the physician as to whether the girl had been keeping company with any boys, he said that she had not, and that there was no possibility of any boys, having come there. Some medicine of an unnamed; sort was given to Bowen by this witness for the girl but the nature thereof (except the statement of the-physician that it was harmless, her condition considered) does not appear.
James Tripp, a justice of the peace of Shannon, county, testifying for the State, says in substance that, on August 11, 1911, a short time before Naomi became ill, defendant told him that he had procured a bottle of calomel while he was in town and made inquiry of the witness Tripp as to how the same should be issued or dosed. This witness also testifies as to the escape of the-defendant from the custody of persons to whom the witness Tripp, as justice of the peace, had delivered defendant, after the latter’s .arrest upon this, charge.
The record contains no evidence of actual access to Naomi Headrick by the defendant, nor are there shown any actions whatever on the part of the defendant toward Naomi indicating that his relations toward her were not those simply of a step-father to a stepdaughter residing in his family. However, this exclusion of. opportunity applies also to the other males in the community, since the record shows that the girl kept no company with the boys in the neighborhood, and that she “had no beaux,” as one witness expresses it. It is shown, however, by one witness, that on 'the 28th of February, 1911, defendant and Naomi were together by themselves in a com field for some two hours.
Outside of the facts above stated, the testimony upon which the State relies for a conviction was in its
Defendant is found on the day that Naomi was buried asking those present there to pray for him, and, putting it in their words, he said: “Pray for me and pray for me hard. ’ ’ This testimony and all of it comes from the relatives of defendant.
Calvin Lane, defendant’s brother-in-law, states that about August 10, a few days prior to the beginning of Naomi’s illness, defendant told him that he thought Naomi was in a family way. This witness further states that just prior to the girl’s death defendant shook hands with him and said “he had got forgiveness for what he had done.”
Isaac Headrick, another brother-in-law, testified that on the day following the death of Naomi, he heard defendant say to defendant’s wife: “Emmeline, don’t grieve, the Lord has forgive me and he will you; you haven’t done half what I have; I have done it all.” This statement of the above witness is corroborated in its .entirety by one Lewis Headrick, who seems also to have been a brother-in-law of defendant.
Marion Tinker, who is a relative of defendant, but in what degree does not appear from the record, testified as to the escape of defendant from custody and as to a conversation had with defendant in which defendant said to this witness that the charge against bim (defendant) “was a mighty serious thing, but that he didn’t have to tell anything to give himself .away. ’ ’
The above is a fair substance of the testimony adduced upon the trial by the State.
On the part of the defendant, he, being called as a witness, denied that he had ever had sexual intercourse with Naomi Headrick; he also denied specifically, statements attributed to him by the witnesses for the State, except that he admitted having a conversation
Defendant’s wife testifying for him states that Naomi ceased to have her regular monthly periods about the last of March, 1911; she further says that she never asked, Naomi- about the pregnancy of the ■latter, “thinking that she would wait until the girl got well and then have a talk with her. ’ ’ This witness says that Naomi had not been away from home at any time for five or six months prior to her death, except one night when she stayed at the house of one Moss,, a neighbor.
Off-setting this, Mrs. Bessie Moss was called by the State in rebuttal, and stated that sometime about February Naomi came home with witness’s little girl;, that she stayed all night, slept with two of Mrs. Moss’s. girls, and that nothing untoward occurred.
Defendant offered testimony touching his previous good character, which was shown to have been “good” or “pretty good,” or as Sen. George T. Lee expressed it, “fairly good,” in the community in which he resided.
At the trial Mrs. M. C. Bowen, the mother of the defendant, was called in his behalf. Since her testimony is considered by us important, we append it in full: “My name is M. 0. Bowen; I am the mother of defendant and knew Naomi Headrick; I was there when she delivered her child, but was not there until after it was born; I cut the after-birth; cut the cord; it came from her naturally; I wasn’t there all the time after the birth of the child; they sent for me, but I can’t say the number of days. I was at the funeral;
In rebuttal, Mrs. Ellen Burnham being re-called by the State, testified as follows: “Q. Are you acquainted with Mrs. M. 0. Bowen, mother of the defendant? A. Yes, sir. Q. Did you see her on the day this girl was buried? A. Yes, sir. Q. You had-a conversation with her that day in which she asked you if they knew what had happened and then told you that this girl had miscarried? A. Yes, sir. Q. And then you asked her who they thought was the father of the child? A. Yes, sir. Q. Then did she state that they had accused this defendant of it and that he had admitted it to Calvin Lane? ■ Objected to by defendant as conversation not being in the presence of the defendant, which objection was by the court overruled, to which ruling of the court the defendant excepted at the time? A. Yes, sir.”
The above statement we think is a full and fair setting out of the facts both for and against defendant. Other matters necessary to a more full understanding of the case will be hereafter referred to in the opinion.
OPINION.
We have not been furnished by the defendant with any brief or assignment of errors, so we must perforce turn to defendant’s motion for a new trial for such assignment of error as may be necessary to an examination of the record. This we are
I. The first complaint found in the motion for a new trial has to do with the sufficiency of the evidence. Points one, two and three in this motion are each di
It is only touching the proof of the corpus delicti that we have spoken. This may be said to consist of two things: (a) a criminal act; (b) the defendant’s agency in the production of the act. [State v. Dickson, supra, quoting Wharton’s Grim. Ev., sec. 325, and cases cited.] Notwithstanding all of this, if the questions here were solely upon the sufficiency of the evidence, we do not say that we should interfere with the verdict of the jury under the facts. So, on the whole, we rule this point against the defendant.
II. Defendant complains that the instructions given by the court on behalf of the State were im-
The admission of this testimony is sought to be justified by the 'State upon the theory that it was offered for the purpose of contradicting Mrs. Bowen. However, an examination of Mrs. Bowen’s testimony will disclose that neither the question nor the answer complained of by defendant has any tendency whatever to contradict any statements theretofore sworn to by Mrs. Bowen. The question complained of was literally lugged into the case by its very ears, and could have had no other effect except to prejudice the defendant. Calvin Lane to whom the alleged admission of Ed Bowen is said by the question to have been made, was a witness in the case and doesn’t testify to any such fact. The question is not directed toward a contradiction of anything that the witness Mrs. Bowen had sworn to. In fact, she swore to no facts which are not abundantly shown by a half dozen other witnesses. She had not hurt the State; nor had she helped defendant, except inferentially by statements indicating the presence of a mob spirit at the graveyard. That a witness may be impeached by a showing that the testimony in court is different from some statement made by the witness out of court is fundamental; but before this can be done the witness must have testified to a state of facts which the alleged impeaching question in somewise contradicts. The rule has been announced by a well-known writer in the following words: “The two statements, however, must conflict in some way. The one made out of court must be inconsistent with some fact stated by the witness in his testimony, or with its general drift.” [Rapalje on Witnesses, sec. 203, p. 339.] The rule stated in Missouri has been couched in terms almost identical
"We concede that it often occurs (indeed, the books are full of such) that an impeaching question, properly admissible, will do by its terms or inferences great harm before the jury to the defendant’s case. Such in a proper case is merely defendant’s misfortune. But that is not the question here, nor is that the vice of the situation presented. The witness Mrs. Bowen had never even been asked if she knew who the. father of the child was. She had been asked “If they knew” this fact — drawing thus by inference upon bald rumor, and making the antidote more hurtful than the poison. Especially, was she not asked whether she had heard defendant admit his paternity thereof ;■ nor whether she had heard him discuss such paternity; nor whether she had heard the alleged conversation of defendant with Calvin Lane; nor even
Except for the error noted, the case was well tried; but since we deem the matter last adverted to prejudicial, we think this case ought to be reversed and remanded, and it is so ordered. Brown, P. J., and Walker, J., concur.