262 Mo. 195 | Mo. | 1914
From a conviction in the circuit court of the city of St. Louis of a violation of section 4476, and a sentence therefor to imprisonment in the penitentiary for a term of five years, defendant, after the usual motion for a new trial, has appealed.
Such of the facts in the case as are necessary to understand the points raised by the appeal and discussed in the opinion, are as follows:
Rosa Ronthiser (called hereafter for brevity, the prosecutrix) resided with her parents in the city of St. Louis and was at the time of the commission of the alleged offense not quite fifteen years old. She had studied stenography and in the latter part of November, 1912, while in the waiting room of Schaper Brothers in said city, was accosted by defendant who asked her if she wanted a position. She replied in the affirmative and added that she was willing to do almost anything. Defendant asked her thereupon what she meant, and prosecutrix replied that she was a stenographer looking for employment. Defendant then said to her, “If yon are looking for employment you can come out to my house to work;” advising her that her house was in St. Charles, Missouri, and that in order to reach there prosecutrix should take a Wells-ton car, get off at the end of the line and go into a candy kitchen located there and say she was going to Julia Corrigan’s house and that car fare would thereupon be given to her. Prosecutrix did not at the time accept this offer, but within a few days thereafter, namely on Wednesday, December 4, 1912, she left her home, went down town in the city of St. Louis, there took a Wellston car, rode to the end of the car line, made inquiry at the candy kitchen, where, she received twenty-five cents from a Greek in charge of the store. She then took a car to St. Charles and went to the house of defendant, which the proof shows to have been at the time, and since, and for a long time prior, a house of prostitution, wherein she was admitted by the defendant, who took her into a room, took her outer clothing off, put a short apron on her and told her she
In the house of defendant there were, besides prosecutrix, five or six other girls. This house contained a dance hall with benches about the wall and was furnished with an electric piano. In this hall while prosecutrix remained at defendant’s house, the girl inmates and divers men who came there, engaged in dancing. On Friday morning, December 6, 1912, following the advent into this house of prosecutrix, a roughly dressed man, partially drunk, and whose name is unknown, came to defendant’s house and she sent him up to a bedroom. Defendant then sent prosecutrix up to this room, where the latter received two dollars from the man. Prosecutrix was then sent back to this room by the defendant and the man therein threw prosecutrix upon the bed and had forcible sexual intercourse with her. The details of this rape are shown in full and at length in the record. To the admission of these details as well as to the fact of rape, defendant strenuously objected and now makes serious contention that such admission is reversible error.
From the intercourse had with this strange drunken man prosecutrix contracted a serious sexual disease, although some considerable effort was made upon the trial to show by a physician, one Dr. Fiegenbaum, who examined and prescribed for prosecutrix, that her infection with this disease could not have occurred at the time of her intercourse in the house of defendant, but that she must have been infected prior to her going to defendant’s place.
On the following day the mother and father of prosecutrix having learned that she was at St. Charles in the house of defendant, went out there, found her and took her back home.
The testimony offered by the State as tending' to jurove that defendant’s house was a house of prostitu
One P. L. Rupp, a deputy sheriff, was offered by the State for the purpose of showing that defendant’s house was being operated by her as a house of prostitution some two or three weeks subsequent to prosecutrix being taken from there. Objection'was made by defendant to the competency of this proof, though the record discloses that all of the testimony given by said Rupp as to the character of defendant’s house, consisted in his stating that he as deputy sheriff “went there on January 8, 1913, with the intention of closing it.” He does not state what sort of a house it was, nor does the record show whether he closed it or not, except in so far as his language quoted would indicate ; and this language by the most obvious inference, indicates that he did not close it.
Testimony on behalf of defendant shows that one Saminos, a Greek employed in the candy kitchen at the end of the car line, gave prosecutrix twenty-five cents to pay her car fare to St. .Charles, and that this money had been left at the candy kitchen by defendant with instructions that it was to be given to a little girl who would call for it. The testimony of defendant diametrically contradicts that of prosecutrix as to the manner of, and the inducements which led to the latter’s going to the house of defendant, and tends to show that she went accompanied by another girl, one Lillian Cameron. The latter testified for defendant that she met prosecutrix down town in St. Louis on the morning prosecutrix went to defendant’s house; that proseen-, trix told her she was going out on Lucas avenue to become an inmate of one of the houses of prostitution, which the witness says were then situated on that
Defendant testifying for herself denied that she ever saw prosecutrix until the latter came to her house in St. Charles on the morning of the 4th of December, accompanied, defendant swears, by the Cameron girl; that the two girls advised her that they would like to board with her for a week or two; defendant asked, “Who is this little girl?” referring to prosecutrix, and was told that her name was Ruth Roberts. Defendant then said that, she didn’t like to do anything like that, “this little girl looJts too young.” Defendant also denied that her house was, or had ever been a house of prostitution, or that she had ever been a sporting woman, or that she had ever sent prosecutrix to a room with any man, as shown by the State, or that any man had intercourse with prosecutrix while the latter was in defendant’s house. In the cross-examination of defendant she was asked over the objections and exceptions of her counsel, whether she had ever kept a house of prostitution in Jefferson City. She denied that she had ever done so-and contradicted in this behalf the testimony of prosecutrix and another witness. Defendant was also asked in her cross-examination if she had not kept a house of prostitution at Columbia, Missouri. This she likewise denied; but to this question and answer neither an objection nor an exception was lodged.
In rebuttal the State, over the objections and exceptions of defendant, introduced testimony to show
“The court instructs the jury that if they believe from the evidence in this cause that the witness, Rosa Routhiser, went out to St. Charles to the house of the defendant, Julia Corrigan, with Lillian Cameron under the circumstances and conditions testified to by said Lillian Cameron, then they shall return a verdict finding the defendant not guilty.”
This statement of the facts will, we think, serve to make clear such points as we find it necessary to discuss in the subjoined opinion.
OPINION.
Many reasons are urged upon us for the reversal of this case. In the last analysis we may tabulate these generally under three heads, with subdivisions thereof, viz.: Alleged error: (1) in refusing to give the instruction offered by defendant, which we have set out in the statement; (2) in failing to instruct on all of the law of the case, and (3) in the admission of testimony: (a) in the unwarranted cross-examination of defendant; (b) of the sheriff, that the defendant ran a house of prostitution in January, 1913, at the identical house and place where prosecutrix was in December, 1912; (c) of the reputation of prosecutrix for chastity, and (d) of the details of the forcible sexual intercourse had with prosecutrix. Let us look at these in their order.
The pertinent language of the statute which defines and denounces this crime is: “Every person who shall take away any female under the age of eighteen years from her father . . . for the purpose of prostitution . . . shall, upon conviction thereof, be punished by imprisonment in the penitentiary not exceeding five years.” [Sec. 4476, R. S. 1909.] The language of the instruction number one given by the court nisi, read upon this point, thus: “If . . . you believe and
If some such instruction as the above had been given for the State we must needs have held it good upon the statute and the facts here, but we opine that the defendant would have objected strenuously to its being given. As the matter was left by the court the jury might well have been led to believe that either physical control and personal presence and a present, as distinguished from a future, going away was an absolute prerequisite to conviction. Be all this as may be we are not able to perceive wherein the omission of the court to define “taking away” as such taking away was shown by the proof here, harmed defendant. On the contrary, a proper definition running with the facts would in our . judgment have hurt her case with the
To the inquiry as to defendant’s having a house of prostitution in Columbia neither objection was made
G-oing hack as a basis for some of the things which we shall say, we observe that it is well-settled that under our statute defining this offense, the gravamen
So, while it is probable that a part of the extreme penalty visited upon defendant is attributable to the fact that the sexual intercourse with prosecutrix for which defendant sent her in unto the drunken man to be consummated, and for which defendant received the price, was accomplished with force, this is but one of the misfortunes directly arising from her own criminal machinations, and is a part of the res gestae. Acts which are res gestae are always admissible, even though they may show the commission by defendant of another crime or other crimes. [State v. Anderson, 252 Mo. 83.] Therefore we disallow this contention.
Having thus examined all of the points made by defendant and finding neither in them nor in the record any reversible error, and being thoroughly convinced of the guilt of defendant, we affirm the case. Let this be done.