*1 1U10 which, defeat would negligence
gence jury the in that sole told effect counter a recovery. not offer plaintiff It is that could not contended v. Baker Compare cause. to on sole defendant’s one instruction (2d) 873. W. City S. Co., Kansas Service Mo. Public by record. the Complaints supported not as to instructions are other $40,000 the of excessive. Defendant claims verdict is (cid:127) ¡Deceased His death. years the time of his twenty-eight old at was years. aged and four. left sons two expectancy was 33.03 Pie two In years. for summer He had for the defendant fifteen worked some re- he would gang, in winter employed as foreman of an extra he 1940, $1,183.31; in $1,062. a vert to track man. Pie earned in average of $162.44 1942 an $1,353; in and in months in seven per month. excessive $30,000
In 1942 held a of in a similar case to be we verdiet two by years also left $5,0.00. older and There decedent was six Ry. Co., 349 Finley surviving. children v. Louis-San Francisco St. Mooney R. W. But in 1945 v. Terminal (2d) Mo. 735. 30) (2d) (aged Assn., 186 S. W. 450 where deceased surviving left we an two infant children sustained award After $35,000, pain suffering. and $10,000 in addition to for conscious question awards, reviewing previous we in that case: “The said from damages primarily jury. apparent It the amount is is attempt the difficult appellate above cases that courts do - trying However, is .verdicts. unless a verdict task harmonize inadequate . grossly should not interfere excessive or courts Taking cases, into above the economic conditions consideration existing decided, the time cases were conditions that' at those age Mooney death, the time of ex- prevail, the at his his life now children, say pectancy and the two small and the widow we cannot ’’ is excessive as authorize our interference. $35,000 that so to' taking change notice of the further bar, In the. case at economic diminishing purchasing power and the continued conditions Mooney decided, we cannot ease'was hold a .ver- dollar since the grossly $40,000 under all circumstances dict of excessive. All concur. judgment is affirmed. (2d) 40200 . 204 W. Appellant Gorden, June . No. Two, Division October *2 William A. Seibel for appellant. *3 Attorney Weir, P. Assistant General, and Gordon Taylor,
J. E. Attorney General, respondent. of the crime Charged commission BOHLING, with the C . county, incest, guilty tried and found in circuit court Cole
Missouri, peni- in years’ imprisonment and sentenced to two tentiary, complaint chief prosecutes appeal. June this Gorden His erroneously stressing an extra- admitted, is that certain evidence was judicial by purported con- prosecutrix statement made and a appellant. fession of the fatally
Appellant’s defective point information that the charged appellant by adultery without because it with incest charging man, citing appellant that at the time was a 31 C. married 1939, provides, well J. is not taken. Section R. S. following degrees so far as con- material: “Persons within the sanguinity, Parents . . . who shall commit towit: and children adultery adjudged or . other, fornication with . . shall be each ” guilty language . incest The information followed statutory gist the statute. This is sufficient for a offense. daughter. instant act offense is an of sexual intercourse' with single Whether an is married of the act is accused or at the time statutory allegation respect not within the definition an there- surplusage. “adultery” charge would be Use of term proper makes it at to establish the accused was married the time. Brown, S. W. State *4 Bullinger, 142, 143; Harris, 99, v. 54 v. Mo. 107, Mo. State 283 W. 42 12 510, 222 J. S. b. S. C. sec. prosecutrix
The State offered the as a She witness. answered preliminary questions any questions a few but refused to answer against charge respecting appellant, standing upon the her constitu rights against tional self-incrimination. the Thereafter, State had City identify police signed chief of of Jefferson to a but the unsworn and, objections' prosecutrix of over the of appellant’s statement the counsel, having succeeded in statement the admitted on the evidence theory testimony prosecutrix the of the not available to the State; that, the next and having the statement was best evidence been voluntarily made, probative it constituted substantive evidence of guilt. appellant,’s The State cites certain civil authorities to sustain admissibility prosecutrix’s of the the statement*. We are not 25; Easterly, 282, 29.4[3, 4], n. C. J. S. 988. sec. Sutter v. Mo. * 31 354 288151; Estate, 748, Re [6], W. Thomasson’s 189 2d 284. 347 758 S. Mo. 148 757, [11, 2d 763 12]. W. S. 1014 a confession, state extrajudicial
concerned or here with an accused’s co-conspirator dur gestae of a constituting part ment of res or the extrajudicial of ing but statement conspiracy, the execution of the the hearsay. against the The written a witness accused. statement appellant’s guilt depends not alone probative Its value as evidence of veracity but, made, upon if the veracity witness, the of the on inquiry the making If whether state person of the the statement. relevant on material, had admission was were made become its ment narrated; proof facts therein establishing that issue but as the not 747.) Bill 718, 22 and The (Consult p. 1228, 719, 746 C. J. S. secs. 1945, Laws Rights (Art. 1, 18, Mo. of our Sec. Const. Constitution 1945, 5) accused p. provides: prosecutions “That in criminal him witnesses'against face right shall have the ... to meet the ” crime the provision face '. accused to This assures to one oath, and rights of confrontation under ex- and of cross-examination of a extrajudicial probative cludes as evidence statement witnesses State v. guilt in the instant case. defendant’s circumstances of the Johnson, 10, 655, State 19(II), 334 64 S. W. 2d Mo. 659[4, 5]; ; 672(III), 62, 314 W. State Kinnamon, 662, v. Mo. 285 S. 64[8] Condit, Gallina, 557, 433; W. v. 307 v. 352 Mo. 178 S. 2d State Duncan, 116 393, 408(I), 286, 270 S. 290 State v. Mo. W. [2]; 288, 360, 22 311(h), 705(h); 23 S. secs. 699, Mo. S. C. J. W. 1000, 400, Am. secs. 999, 1002; 888, 176; 14 sec. 20 Am. Jur. Jur. 430, 435, 452; Wharton, (11th Ed.) 672, 1 Cr. Evi. secs. 437, 438, 443; Rep. 23, 39; 33 A. L. Annotations, 129 Am. St. Dig., 48(2). 25 Rape 20, Consult West’s Mo. signed
An extrajudicial statement, by appellant written and objection confessing offense, was admitted evidence over the appellant upon but the condition and with the assurance attorney proof prosecuting independent corpus to court that of the just be adduced. have ruled the of the delicti would We statement prosecutrix was inadmissible under the record made. This causes any independent probative record be devoid evidence of of court, did the trial considered, fense. We have as that a confession by independent proof corpus be corroborated of the delicti should guilt. logical procedure it evidence of before constitutes is to corpus delicti thereafter the accused’s con first establish W. v. Bennett 6 (Mo.), State 2d nection therewith. 882[2]; Adams, 664, 670(11), 274 S. W. v. State State [4]; v. German, Bowman, 245, 258(I), Mo. Mo. reviewing cases; p. W. 243 S. C. J. 114[1, 2] *5 1047; 22 b, 1046, 1248, secs. C. J. S. p. b; sec. sec. 485, p. 1083, 1233; Jur, Annotations, secs. p. 20 Am. (N. S.) 536; 28 L. R. A. 78 Am. L. R. A. Dec. 913. 10 Ann. Cas. defendant- With the statement that the cross-examination of a referred to' in the trial or of his wife should be limited to matters on 1939), (Sec. 4081, foregoing disposes chief examination appellant’s presented all the issues brief. reversed and the cause is remanded error in judgment is for 'Barrett, OC., of evidence. Westhues and concur. the admission foregoing opinion C., adopted PER CURIAM:—The by Bohling, judges All concur. opinion of the court. as the Henry (2d) 40478 . 204 S. W. Appellant Gardner, . No. Two, Division October Joseph appellant.
S. E. Garner and for McDuffie Harry Kay, At- Taylor, Attorney General, H. Assistant E. J. General, torney respondent.