170 Mo. 398 | Mo. | 1902
Defendant was convicted in the circuit court of Dent county, and his punishment fixed at imprisonment in the county jail of said county for the term of six months and a fine of five hundred dollars, under an information filed in the circuit court of said county by the prosecuting, attorney thereof, charg
Defendant began keeping company with the prosecuting witness, Augusta Capps, when she was thirteen years old, and she was nineteen at the time of the trial, April 25, 1902. She testified that he called upon her at her home, and that she thought he loved her, and they became engaged, and went together off and on until June 15, 1901, when he seduced her under the promise of marriage; that at the time he seduced her, he said that he would do as he promised to do, that they would live in Jeff Dent’s place, and that she gave up to him; that as a result of this connection she was delivered of a child on the 9th day of April, 1902, of which defendant is the father. The evidence showed that the offense was committed in Dent county. It also showed that Augusta Capps was of good repute prior to and up to the time the offense is alleged to have been committed. There was some evidence tending to show the corroboration of the prosecuting witness with respect to the promise of marriage.
Defendant introduced evidence tending to show that Augusta Capps was not of good repute at the time of her alleged seduction by him, and that she had before that time been guilty of lewd conduct, and had criminal connection with other men. Defendant testified in his own behalf and denied that he had ever at any time promised to marry Augusta Capps, but did not deny having connection with her at the times and places stated by her. He admitted that he had offered her two hundred dollars to compromise.
Defendant contends that the facts disclosed by the evidence did not make out the crime of seduction, but a sufficient answer to this contention is that they were sufficient to take the case to the jury, whose province it was to pass upon their weight, and they having found
Nor is the assertion that there was no evidence that the offense was committed in Dent connty sustained by the record, for no pther conclusion could be drawn from the evidence than that it was,’ and the jury having so found under proper instruction there was no error upon that score. [State v. Darrah, 152 Mo. 522.]
Over the objection of defendant the prosecuting attorney was permitted to read to the jury at the beginning of the trial, section 1844, Revised Statutes 1899, that being, the section upon which the prosecution is bottomed. That section provides that, “if before judgment upon an indictment, the defendant marry the woman thus seduced, it shall be a bar to any further prosecution of the offense;” and in permitting the statute to be read to the jury, it is said, error was committed. But no authority is cited in support of this contention, nor have we been able to find any after considerable research. On the other hand, it was held by the St. Louis Court of Appeals in the case of the State v. Boogher, 8 Mo. App. 599, as shown by the appendix to that volume, that “ it is not error for the prosecuting attorney to read to the jury in his opening statement the statutes upon which the action is founded. ’ ’ If the defendant was not guilty as he claimed, he was not embraced within the provisions of the statute, but if guilty he could have availed himself of its provisions with the consent of the prosecuting witness, by marrying her, and thus have escaped the punishment provided thereby, so that, in either event, we are unable to see how he was prejudiced by its being read to the jury. In Commonwealth v. Hill, 145 Mass. 305, it is said: “Those provisions of the statute which directly relate to the offense charged, counsel have always been permitted to read to the jury.” We do not think, however, that such a course should be commended (State v. Brooks, 92 Mo. 542). The better practice is to rely
It is also said that the cross-examination of defendant was improper, but as the record discloses that the only objection thereto was g’eneral, it was just as if no objection had been made, and the point unavailable here.
There .is no material conflict between the second instruction given on the part of the State, and the fifth given at the instance of defendant. In fact, the latter supplies any apparent defect in the former, in that it requires the jury to find that the prosecuting witness was seduced by promise of marriage, when by the State’s second instruction the jury were told that the prosecuting witness is seduced, “within the meaning of that term . .' . when by arts and blandishments she is deceived, corrupted and drawn aside from the right path. ’ ’ So that, whatever methods may have been resorted to by defendant in order to seduce Augusta Oapps, the seduction must have been brought about by a promise of marriage and the jury were so told in the State’s first instruction, and, when the instructions under consideration are read together, as they should be, there is no material conflict between them.
The State’s fourth instruction is -criticised upon the ground, as claimed,-that it leaves it to the jury to say what are material facts that would impeach a witness. Similar instructions have been, so often and so universally approved by this court, that it is not deemed necessary to cite authorities upon the question.
The point is made that the court should have given the fourth instruction asked by defendant and refused; but this position is untenable for the reason that the third instruction given in behalf of defendant embodied the same principles, and is couched in substantially 'the same language, hence, there was no error in refusing it. It is not error to refuse an instruction, however, correct from a legal standpoint it may be, when another is given covering the same principles. •
Nor do we think there is any mferit in the contention concerning the seventh and eighth instructions given by the court of its own motion with respect to the reformation of the prosecuting witness before the time she stated she was seduced by defendant. There was evidence that she was of good repute at that time,, which tended strongly to show that if she had ever been otherwise than of good repute she had reformed and was following the path of virtue and rectitude at the time of her. seduction. [State v. Sharp, 132 Mo. 170.] Taking the instructions altogether they presented the case very fairly to the jury, and especially so on the' part of the defendant.
Finding no reversible error in the record the judgment is affirmed.
