132 Mo. 140 | Mo. | 1896
Prom a judgment of conviction fixing his punishment at a fine of $200 and imprisonment in the county jail for sixty days for seducing and debauching one Ada E. Jenkins, an unmarried female under.the age of eighteen years, under promise of marriage, defendant appealed. The offense is alleged to have been committed in Carroll county, and the trial and conviction were had in the circuit court of that county.
• The prosecuting witness and the defendant both lived in Carroll county about six miles apart. He called at her mother’s home with a friend, and became acquainted with her in the spring of 1891, and from that time on until June, 1893, called on her regularly, she testified about once a week — occasionally taking her to entertainments and frequently to church on Sundays. She also testified that they became engaged to be married about his second visit. That afterward her mother’s family, including herself, moved to Bosworth in said county where she and defendant went to school together. That after she moved to Bosworth defendant continued to visit her as before, and in January, 1893, during their engagement to marry, and under promise by defendant to marry her, he seduced and debauched her. That as a result of said seduction a child was born to her October 4,1893, which died about three weeks thereafter. That defendant visited her after he knew that she was pregnant and also after the indictment was found, and admitted that he had promised to marry her and stated that he intended to do so. That she was under eighteen years of age at the time of the seduction, at which time the evidence showed she was of good repute.
I. The first assignment of error is with respect to the action of the court in allowing the prosecuting witness Ada Jenkins to state, over the objections and exceptions of defendant, that on some three or more occasions after the month of January, 1893, when she stated the seduction occurred, defendant stated- to her that he would marry her. Some of these statements were made voluntarily by the witness in answer to questions by the prosecuting attorney with regard to what was said by defendant in those conversations— with respect to promises of marriage made by him to her before the seduction.
The questions were proper, as any admissions or statements made by the defendant at any time tending to show that he had promised to marry her before the offense is alleged to have been committed, were admissible against him; but evidence of any promise of marriage made after that time was clearly inadmissible. The objections, however, were general, the only reason assigned being that the evidence was “incompetent.”
It has been repeatedly held by this court that a mere general objection to evidence will be disregarded on appeal. State v. Moore, 117 Mo. 395; State v. Smith, 114 Mo. 406; State v. Harlan, 130 Mo. 381. Moreover, as the statements of the witness that defendant had promised to marry her, after he had seduced her, were not responsive to any question asked by the state, and merely gratuitous on her part, defendant should have moved to have the evidence stricken out or excluded from the consideration of the jury, and having
II. Dr. GK R. Highsmith, a witness for the state, testified that at the request of Ada Jenkins and her mother he made an examination of Ada about the last of April of the first of May for the purpose of ascertaining if she was pregnant, and found that she was. On cross-examination he was asked the following question: ‘ ‘I want to know the reason why they called on you for an examination if they were not ignorant on that point: I don’t want what they said: I want the reasons they gave for an examination if they already knew what was •the matter?” To this question counsel for the state interposed an objection which was sustained by the ■court, and defendant duly excepted. This ruling is also ■assigned as error.
. The law is that he who asserts that error has been ■committed must make it so appear. This is not shown by the question itself, and we can not presume that the trial court erred. As was said in Kraxberger v. Roiter, 91 Mo. 404: “The questions do not disclose the fact that any answer the witness might make, responsive thereto, would be material evidence in the case, and the purpose for which they were asked is in no way disclosed, except by the questions themselves.” See, also, Bank v. Aull, 80 Mo. 199; State ex rel. v. Leland, 82 Mo. 260; Jackson v. Hardin, 83 Mo. 176. This point is untenable.
III. It is also insisted that the court erred in refusing the instruction asked by defendant in the ■nature of a demurrer to the evidence, because it is contended that the evidence was not sufficient to establish the contract of marriage, or the age of the prosecuting .witness at the time of the commission of the alleged offense. By section 3486, Revised Statutes, 1889, it is •made a felony for any person, under a promise of marriage, to seduce and debauch any unmarried female of
In a prosecution for perjury it was said: “The additional evidence need not be such as standing by itself would justify a conviction in a case where the testimony of a single witness would suffice for that purpose ; but it must be at least strongly corroborative of the testimony of the accusing witness.” State v. Heed, 57 Mo. 252.
State v. Hill, 91 Mo. 423, was a prosecution under Indictment for seducing a female under promise of marriage, and it was held that, “evidence of circumstances which usually accompany the marriage engagement will satisfy the statute as to supporting evidence.”
The evidence shows constant attention by the defendant to Ada Jenkins for over two years; that she kept company with no other man during that time; that he visited her regularly about every Sunday. One witness stated that he regarded the attention of the defendant to her as a matter of courtship, and that he frequently joked them about their relations as lovers. The facts as thus detailed were, we think, sufficiently corroborative of the evidence given by Ada Jenkins, as
As the evidence with respect to her age in January, 1893, was conflicting, that was a question for the consideration of the jury also.
IY. Another contention is that the court erred in refusing to allow the witness Caroline Jenkins to state how long she had known the infant Ada Jenkins, before the birth of her own child, the date of whose birth she had given. This contention evidently has reference to the evidence of Margaret Jenkins, who testified as a witness, and not to Caroline, as no such question was propounded to the latter, so far as the record discloses, while there was to Margaret. But it does not appear that the answer sought to be elicited to the question was material, or that defendant’s rights were in any way prejudiced by the ruling of the court, and the judgment should not be reversed on that ground.
Y. There was no error committed in the cross-examination of defendant with respect to his reasons why he quit going to see the prosecuting witness. He had testified that he first called on her in the winter of 1890, and continued to call on her once in every three or four weeks, until after January, 1893, and it was entirely proper to ask him on cross-examination why he then discontinued his visits. It was with respect to that to which he had testified in chief, that is, his visits to Ada Jenkins.
YI. Permitting either party to introduce additional evidence after the evidence had been closed and before the case was submitted to the jury, was a matter resting in the discretion of the court, and its action with respect thereto will not be reviewed unless it appears that its discretion has been abused, and it does not so appear in this case. State v. Pennington, 124 Mo. 388; State v. Smith, 80 Mo. 516.
VIII. There is no merit in the contention that the court committed error in rendering judgment against the defendant immediately after the motion for a new trial was overruled, and- before defendant had time to file his motion in arrest. The motion in arrest was thereafter filed, considered by the court and overruled, and no point is made in this motion on the action of the court in rendering judgment on the verdict after the motion -for new trial had been overruled, and before the motion in arrest was filed. Defendant had the benefit of both motions, and it is inconceivable how he could have been prejudiced by the action of the court in respect to this matter. Moreover, had the question been raised in the motion in arrest the correction could have then been made, had it been important, by the court at the time. The objection now comes too late, and is technical at most.
IX. A final contention is that the verdict is against the weight of the evidence. That was a question for the consideration of the jury. It is only in case there is no substantial evidence to support the verdict that this court will interfere, and it can not be said that such is the condition of this case. State v. Fischer, 124 Mo. 462; State v. Young, 119 Mo. 495; State v. Banks, 118 Mo. 117; State v. Punshon, 124 Mo. 448.
The defendant seems to have had a fair trial, and finding no error in the record which would justify a reversal of the judgment, it is affirmed.