209 Mo. 413 | Mo. | 1908
The defendant, at the June term, 1907, of the circuit court of Crawford county, was convicted of the crime of incest, under an information filed by the prosecuting attorney of said county, charging him with the commission of said offense with his daughter, Laura Brown, on the 1st day of April, 1907. His punishment was assessed at three years in the penitentiary. After filing unsuccessful motions for a new trial and in arrest, defendant appealed.
The testimony on the part of the defendant tended to prove that a short time prior to the issuance of the warrant against defendant, the latter, in company with his daughter, Laura, had applied to J. M. Johnson, a justice of the peace, for a warrant against one Gain on the ground of seduction, and that the justice asked the prosecuting witness if she had ever had intercourse with parties other than Cain, and she admitted that she had intercourse with the three Jost boys. Charles Hulsey, a deputy constable who assisted in the arrest of the defendant, testified that at the time of the arrest he asked the prosecuting witness why she wanted to have her father arrested, and that she replied that it was because he whipped her on account of her intimacy with one Cain; that she further told witness, in reply to questions, that she had had intercourse with Cain about seven times. Witness further testified that, afterwards, in a store in Bourbon, the prosecuting witness acknowledged to him that she had been intimate with a young man who worked in the store. All of these statements were denied by the prosecuting witness, upon cross-examination.
The defendant testified in his own behalf that he was fifty-two years of age, and had been engaged in farming near Bourbon, in Crawford county, since 1893; that his daughter admitted to him her intimacy with Cain, and that he had taken steps for the apprehension
Mr. Harrison, counsel for the defendant, testified as to the diligence used and the efforts made by him to locate Cain and secure his attendance as a witness at the trial of this case.'
Several of the more prominent citizens of the county testified as to the general reputation of the defendant for truth, honesty and morals, the general tenor of their testimony being that they had never heard his reputation questioned.
The defendant contends that the court, in permitting witness Joshua Brown, over the objection of the defendant, to testify, committed error, on the ground that it was shown by the examination of the witness touching his understanding and capacity that he was incompetent to testify.
Among the persons incompetent to' testify, under section 4659, Revised Statutes 1899, is “a person of unsound mind at the time of his production for examination.” At common law every person of the age of fourteen years is presumed to have sufficient intelligence, discretion and understanding to testify as a witness, but under that age such presumption is not indulged, and therefore inquiry is made as to the degree of understanding which children offered as witnesses, may possess, and if upon examination touching his capacity, it be found that the witness has sufficient natural intelligence and has been so instructed as to understand the nature and effect of an oath, he is permitted to testify, whatever his age may be. [1 Greenleaf on Evidence (Redfield’s Ed.), p. 413.] But the common law rule has been changed by statute in this State (sec. 4659, supra), so that, by implication at least, any child or person over ten years of age is prima-facie competent to testify as a witness; but if
It is insisted that the testimony of Laura Brown with reference to previous acts of the defendant ought not to have been admitted, for the reason that it does not detail any specific acts of intercourse or refer to any particular time when the alleged previous acts of intercourse between them took place. The objection to this testimony was general, and amounted to no objection at all, and there was no error in admitting the evidence. [State v. Adams, 108 Mo. 208; Margrave v. Ausmuss, 51 Mo. 567.]
We cannot admit the defendant’s contention that, because the information charges that the defendant was a single man at the time of the alleged sexual intercourse with his daughter, Laura Brown, it was essential to the conviction of defendant that the State so prove. The allegation was an unnecessary one, and, therefore, unnecessary to be proven, and may be regarded as surplusage. The elements of the offense, necessary to be alleged and proven were the sexual intercourse between the defendant and Laura Brown, and that she was his daughter. Whether he was or was not a married man at the time is wholly immaterial.
The final question is, whether there was any evidence worthy to be called such upon which to base the verdict in this case. As reluctant as this court may be to interfere with the verdict of a jury which has been approved by the trial court, the law makes it our duty so to do when the exigencies of the case and the rights and freedom of a citizen seem to demand it.
The prosecuting witness, Laura. Brown, upon whose testimony the verdict must stand or fall, is shown by her own testimony to be a very ignorant, illiterate and unruly girl, and, by her admissions to other witnesses who testified in the case, to- be lewd and unchaste and unworthy of belief. She did not know the name of the county or State in which she lived, and the only reason given by her for not telling that the defendant had “courses” with her, as she expressed it, was that he did not want her to tell. She admitted to the justice of the peace before whom she went to make complaint against one Cain for seduction, and also to the constable who arrested her father on her complaint, that she had been criminally intimate with several young men in the neighborhood, and especially with the man Cain, all of which admissions she denied having made.
The following is taken from her testimony:
*421 Q. Why was it that you did not tell anybody else, what it was your father did to you along in July? A. Because I was afraid to.
Q. What made you afraid? A. He told me that he did not want me to tell it; that was why I was afraid to.
Q. What, if anything, did your father do to you before last July? A. He done me the same as before.
On cross-examination, she testified:
Q. Your father has been strict with you, has not he? A. Yes, sir.
Q. You want to get out from under his care, from under his control? A. Yes, sir, I do.
Q. You made this complaint shortly after your father punished you, did not you? A. Yes, sir.
Q. The next day, is not that true? . A. No, sir; I don’t believe that it was the next day.
Q. Well, the second day? A. It might have been the second.
Q. Did you not plan to have your father arrested and put in jail, and your brother was to take charge of the place and you and he were to run it? A. Yes, sir.
Q. That was the way you had it planned? A. Yes, sir.
She also testified that she never made any complaint to her neighbors about her father, although she knew that they would protect her if she did so; that the first person she made any complaint to was her brother John, and that was the evening before she went to Bourbon to make formal complaint against her father, which was about nine, months after the time of the alleged intercourse with defendant.
It cannot be said that she was corroborated by her brother, Joshua, because his story is incredible and not of a feather’s weight. Aside from his apparent want of sufficient intelligence to testify, it seems in
The facts detailed in evidence strongly indicate that it was malice or ill-will against her father that prompted the prosecuting witness to make this charge against him and have him prosecuted, and when we consider this in connection with the bad character of the prosecuting witness, her failure to make complaint until a day or two after being whipped by her father, although according to her testimony the commerce had been carried on for several years in the same room where the whole family slept, her successful impeachment, and the good reputation of the defendant for truth, honesty and morals in the neighborhood in which he lived, we are constrained to believe that the girl’s story was a fabrication, and are convinced that the verdict and judgment ought not to- be permitted to stand.
Our conclusion is that the judgment should be reversed and the defendant discharged. It is so ordered.