*1 1920. TERM, State v. Appellant. HARRIS,
THE STATE WILLIAM Two, June Division 1920. Rape: infor- INFORMATION: Incest: Habitual
1. Criminal. statement, charging (1) defendant mation with set-out’in breaking jail escaping, rape upon (2) crime a child four- and years child, age (3) teen is held sufficient incest with said requirements to meet the the law. that, Testimony 2. COMMON after the LAW.WIFE: Witness. death wife, of defendant’s the witness lived him in the same house with every- years, as his wife for seven his name took she wife, daughters where introduced his her as his called wife, prima- testify “mother” and were man and makes a tending facie case sustained she and defendant show wife; being. testimony relation of there husband and no facts, competent testify controvert these she is not over his objection. By 3. Testimony. prosecution AGE OF PROSECUTRIX: Her In the statutory daughter, rape of a defendant for whose mother dead, years age is that she was fourteen time the offense September, being was committed in the best evidence obtain- . able, competent, destroyed by- testimony is and is her step-mother that, December, 1918, at the time trial in years age, was sixteen but is sufficient to authorize the age to find that she was under the of fifteen when the crimе was committed. 4. RAPE: Intent: Other Offenses. th'e trial a of defendant knowledge age consent, with cárnal of a child under the wholly immaterial, intent with which the offense is committed is part offense, is no but the crime is established show- age ing that she was under the of consent and that defendant her; given and no instruction be should competent only that evidence of other acts for the showing particular the intent with did act. [Overruling Belknap, 39.] S. W. -: -: Evidence of Other Offenses. Each act of sexual girl separate with a under intercourse of consent is a crime, Independent particular and in the trial of defendant acts, previous subsequent, no evidence act of other girl, competent, charged specifically another unless COURT OF MISSOURI. SUPREME information; separate event no the indictment or counts of proper considered for such acts is it to instruct that *2 particular establishing purpose the intent which of the the act was committed. J., dissenting, prior WILLIAMS, Held, by of acts that evidence P. admissible, persons is intercourse the same of sexual between intent, purpose proving the but for the not for guilty particular proving he the act with which defendant charged. stands Charged Be and Cause of Action: Must OTHER CRIMES: Nature 6. provision “in criminal The Information. constitutional in right prosecutions the the to demand the shall have accused in- be the means that he is to nature and cause accusation” accusation he information or of the formed required meet; indictment constituting separate and in- and if other acts dependent crimes, other such as acts charged specifically - age consent, girl are not under the into, investigated inquired separate counts, they for be cannot part thq forms no were with which committed intent charged specifically if offense. But of such acts several offered, testimony separate counts, and them to sustain upon of them it will elect which ask con- the State can one viction.
Appeal Arch A. Court.—Hon. from Greene Criminal Judge.
Johnson, remanded. Reversed appellant. H. Fairman for Mason and John
Val
wholly
prove
(1)
failed
State
The
Houx,
prosecuting
109
witness,
Harris. State v.
Gully,
Ackley,
124;
645;
199
v.
v.
S. W.
State
Mo.
State
testimony
wholly incompetent
289. This
183 S. ~W.
(a)
hearsay
either
it was
shown
because
declarant
(the grandmother) was dead or that her testi-
mony
(b)
trial;
unobtainable
was otherwise
family;
(c)
a member of the
even
declarant was
made
litem
were
ante
mortam. State
declarations
(2)
Bowman,
Frаnk H. P. Attorneys-Gen- Ragland Broaddus, Assistant and J. W. respondent. for eral, charging rape
(1) The information incest, previously hkd been convicted of break- that defendant jail, form and substance is sufficient to meet 102 COURT OF MISSOURI. SUPREME
State
v.
requirements
R.
Laws
4471,
1909;
of the statutes. Sec.
S.
Kelley’s
p.
Law
R.
Crim.
1909;
S.
218;
4725,
Sec..
v.
1909;
Oertel,
&
sec. 935
R.
State
;
Pract.
Sec.
S.
upon
(2)
S.
is based
“We, rape guilty count of in the first the.informa- as imprisonment in the punishment at tion and assess his ’’ ninety-nine years. penitentiary term for mоtion for filed his 17,1918, defendant December On respec. judgment, which were arrest of new trial and in tively last 1918. On said December overruled duly pronounced in accordance was date, named sentence the verdict aforesaid. terms of with the defend- to show that the evidence tends The State’s forty-two Harris, in this was case, ant William daughters, Lucy age, Ruth, father of three and the girls Josephine. deceased, was The mother of these eight years, living for about seven or been had, defendant Etta. under the name of who, Wheaton, with one Etta as his wifе. testified held herself out She everywhere as such, introduced and was referred she was August, by On or “mother” children. about Josephine Wheaton, Byrum, the farm some three moved Luther or four Springfield, County. in Greene On miles southeast dwelling large was a house, two- farm, this story besides portion kept, was lower besides the barn. grain, upper such as oats and corn. stock, small portion, hay. stqring was used loft, It was committed barn that defendant the acts, constitut- charg- the commission of crime for which, he was daughters and convicted. The ac- were ed help frеquently him with his chores customed and were during in the barn. It him one oc- these that defendant casions Josephine. The testified on the latter witness stand present her, at that and saw father *5 COURT SUPREME OF MISSOURI. Lucy. down
have He had intercourse with her.lie got hay, her clothes, raised trousers, unbuttoned his top She testified her had connection with her. Lucy, her called he then to further that act with after the hay, her he also to come and with and lie down on gave Lucy Defendant ten cents had intercourse. Josephine Jose- that.” cents, five as the latter “for said, phine with stated she defendant have intercourse saw she how and, once after while did know that, many improper with times her had father relations Lucy, yet “quité she knew in he so the barn a few did ’’ upstairs it times. would be Sometimes sometimes according Josephine, testimony,, down. thir- her age. teen living
Etta Wheaton testified that she had been years, during the defendant about seven all of time public she held herself out to the as his wife, recently, very girls lived with until him until the came and told her stories, their father. That last she Plattsburg, lived Missouri and while they residing early were there she saw one morning Lucy. get They into bed with were both night their clothes. She afterwards accused defendant having daughter, shortly had intercourse with his Plattsburg. July, after time he left she heard that her husband had married another Alice woman, She then police Weaver. wrote Miss Hull, matron Springfield, stating in her letter that defendant had having been Lucy. sexual She further marriage testified that, after of defendant, she sent Lucy, living Springfield who was then with her, to father for him to take care of. That she also discovered her husband in act daugh- of intercourse with another Alley City ter, Springfield. Patton Ruth, When called stand she stated that County, was bom Monteer, Shannon Missouri, and years. there until she was of the lived of nine While living in her father Monteer, had intercourse with her. From Springfield, Monteer, moved then to *6 TERM, 1920. y. Harris__ vicinity. again, states, she Byrum Here farm that many does she times he her —how with had intercourse Josephine in story out not know. Her hears that com- nearly every particular intercourse acts of as to the Lucy fourteen was she testified barn. mitted years that age. to evidence tended the defendant behalf of On (Wheaton) living with Etta show that he had been they liv- years, eight were nearly that and or seven while were together wife; that, as husband any have Byrum at time, did, never farm, he Josephine, nor Lucy either or with relations criminal any Plattsburg' intercourse time at have inhe did by he Lucy; Etta to Wheaton that at the time referred Lucy’s merely gone before her, and kissed to bed had supported Lucy, by starting In he is this, work. to his x that it was true. for she testified not daughter, that another testified Hunter, Ruth any any improper see re- time, at did, she never Josephine Lucy; lationship her father between any any at her made had, time, that sisters neither complaint any presence, or in relative mis- her, to her to by her that it her father; them true, treatment not any her. at ever sexual intercourse with father, charge maintains that this was instituted Defendant jealousy. against Lucy him Ruth because Both time that Etta Wheaton learned his testified marriage, very angry. was Ruth she stated that Etta Springfield get go tried to to her to and swear out war- against her that father; her to so, rant refusal do persuaded Lucy do so. who Weaver,
Mrs. testified behalf of Lucy shortly that came her stated house before stayed night; over trial, that she stated her charges against made defendant, her father, (Lucy), her false; were that Mrs. Wheaton had forced heavy her under threats, and had been induced charge by O’Day make the Mr. and Miss Hull. her Lucy cross-examination, testified that she told Mrs. OF SUPREME COURT MISSOURI. She against false. charges were Weaver father tbe her prosecuting letter to further testified that she wrote testify attorney, want him she did told charges false. were her fath that the »r, for the reason habit In the Tht re evidence some men; rooming frequenting houses streets and reputation and William bad, connection County, Mcllheny, deputy testified sheriff of Greene Josephine near out when place attended school *7 good. reputation telling was not truth the their for Howell of Court Lawhead, Cash of the Circuit Clerk court, County, said “0” Book of that Record testified con- entry showing had been that defendant contained penitentiary from Howell to the victed and sentenced breaking County jail. himself The defendant of for the terma served so convicted that he had been stated and penitentiary. years in the оf two necessary con- be will other facts as Such ap- opinion . The due in the sidered pealed court. to this the cause caption omitting
I. and verifica- The information, tion, reads as follows: Prosecuting Attorney O’Day,
“Paul within and Missouri, the Countv of in the his Greene, under State of Harris, oath of William late officeinforms the court that — day Sep- county of and aforesaid, the state the of on county of A. 1909, tember D. at the Howell and State of Missouri, was then convicted in the and there Circuit County. Missouri, break- the crime of Court of Howell of ing jail еscaping and and was sentenced to serve a term penitentiary of two and dis- the was afterwards vears compliance upon with his sentence, and .there- September, — day after on or County of about the in the Missouri, of of said Greene State thé Will- Lucy iam Harris, then and there one Harris a fe-. age years, to-wit, male child under the of of the fifteen fourteen, unlawfully years, feloniously of and did Harris, Lucy assault, her, make an and then and said unlawfully feloniously carnally there and did know and TERM, 1920. y. ,
State cases contrary in such of form statute abuse, to tbe dignity peace of provided and made and and Prosecuting O’Day, At- Paul the State. the said And County torney in the Greene, of within and for informs further of oath office Missouri, his under county state court late Harris, that William and — September, day A. D. af oresaid, County and then Missouri, Howell and State County, Howell there convicted in the Circuit Court escaping breaking jail and Missouri, of crime peni- years in was sentenced serve term two discharged upon compliance tentiary and was afterwards — day with, about sentence thereafter on or County September, of Greene being then and there the said William Harris Missouri, William Har- the father of one and the said persons being then and within ris and there marriages degree consanguinity, within the by being void, to-wit, law declared be incestuous daughter, then and there then there father did feloniously unlawfully, incestuously, knowingly, will- fully then and other, fornication with each commit having *8 contrary together intercourse there provided in such cases made form of statute against dignity peace of the State.”
T. The information is sufficient meet above [Sec. 1909; R. 4471, law. S. Sec. reauirеments R, p. 218; S. 1909; Sec. Laws R. S. Kelley’s Oertel, 1909; 217 S. W. Crim. Law 935.] Practice, sec. & by appellant, It contended
TI. ‘‘the court admitting, objection erred in over the and ex- Common ecution of the the testimonv Law Wife. legal Harris, who Etta was the de- wife fendant.” important assignment presents inquiry
This in the case, only by and can be determined the evidence before appears (Har- us. It from record that Etta Wheaton MISSOURI. OP COURT SUPREME
State v. Harris_ court, ris) pending in the her above case living in adul- wherein with the crime of she was by the tery a witness as defendant. She offered objected competency her as and her counsel State, might give any testimony that she witness, because wife she is tend to herself, incriminate- because testify- objected defendant. Defendant likewise common- as a witness she is case, because objection overruled, law This'last wife of defendant. exception by duly and an saved defendant.
Upon Etta Har- counsel, examination defendant’s ris as follows: testified you say de- live with the
“Q. You commenced to ago? A. fendant, about Harris, William seven Yes, sir. ‘‘ him all re- Q. And have lived with until you? cently, haven’t A. sir. wife, as Yes Everywhere. Been A. “Q. as his wife”? introduced everywhere? “Q. Been as his wife A. Yes, known sir.” substantially, as testified,
On cross-examination she quoted. above
Josephine Harris, witness for State, testified subject as follows: Byrum place? “Q. lived there on the A. Who Who there us? lived your My family? what members of A.
“Q. Yes, step-mother. my father and sister step-mother’s your “Q. A. name? What Wheaton. say step-mother, your you
“Q. You do mean your say father, that William and Etta Wheaton together They A. man and wife? lived were man wife. *9 your understanding?
“Q. That is A. Yes, sir. say you “Q. You mean to understand were A. sir.” Yes, married? testified as follows:
Defendant 109 TERM, Mo. 283 State v. Harris long you to the how to state I will ask
“Q. I you now сouldn’t Well, A. Harris? lived with Etta eight years. say positively, seven good this, (Springfield) a town You lived “Q. part A. sir. Yes, time? ‘‘ you were During Etta Harris time all that Q. together living A. Yes, sir; and wife? as husband marry I her.” to was because intended testimony tends corroborate to alleged regard quoted, in to the commou- heretofore marriage Etta Harris. law of defendant and tending nothing in
There is to contradict record Regardless testimony quoted. law heretofore marriages jurisdictions, relating we are satis prima-facie foregoing testimony a fied from the case tending at thе time made to show that trial, the; sustained, as to each under other, and Etta Harris relation and wife. State, laws of husband [Cargile Dyer 501; Mo. Wood, 63 66 Mo. v. v. Brannock, Cooper, 79 Mo. v. 400; Gonce, 600; Perry, Topper Bishop v. Mo. 266; 531; 103 v. 197 Mo. Pope l. Inv. Mo. c. 229 v. Co., 728-9, 730-1; Brittain Ry. l. c. 957; Metz, Mo. Pac. 175 S. W. Rauch Co., v. App. l. Imboden 111 362; Co., c. v. S. W. Mo. Trust App. 405; 116 Mo. Plattner, Plattner v. Davis 234; App. p. 393.] C. L. sec. Mo. R. Stouffer, any tending evidence the record con Without relating marriage the common-law facts trovert opinion that the we trial aforesaid, court com permitting testify error in mitted objection over the case, in the defendant. witness against prosecution the husband, can wife criminal testify objection. legally him, over his [Sec. 125.] 1909 l. ; Evans, c. R. S. strenuously insisted that the It is trial court III. submitting error in cause committed Age of jury, proving without the State Prosecutrix, September, Harris, in 1917,was under years. of fifteen *10 COURT OF SUPREME MISSOURI. .110 Harris objection, Lucy was that' testified, Harris without years age. dead, and fourteen of Her mother was subject. The State testify defendant failed to It claimed obtainable. offered evidence best testimony Lucy Harris of Mrs. Weaver discloses given yеars age. testimony at This was was sixteen of charges the trial in 1918. The information December, September, It in 1917. that the offense was committed Lucy question was, for the as to whether therefore, years September, was under fifteen of alleged when the offense is to have been committed. per- is claimed that the trial erred in IY. It court mitting the State show other acts intercourse part „, , defendant, from aside charged testimony information. This objected properly by not in the but defendant, given by giving instructions and to the- court, objected ap- which following defendant at the pears : you
“And in this connection are further instructed testimony other acts of intercourse defendant with Harris or Ruth Harris, are com- petent only showing for the intent with which the defendant acted on the occasion on which ’ ’ defendant and on trial in this case. say,
That -is this instruction means, that the other- competent, acts of sexual pur- intercourse for the pose fixing the intent with which the defendant had Lucy, charged, sexual intercourse September, Lucy, Now, 1917. if time, was under fifteen age, wholly the intent with act was done, is as the crime immaterial, was committed, if the defendant had sexual intercourse with under such circum- regardless his intent. stances, Belknap, the recent case 221 S. W. reported, officially following assignment ‘‘The court in allowing error was made: erred the State many evidence of attacks, to introduce when the defend- ’ ’ only for one attack be tried ant and one could crime. Ill TERM, y. opinion, passing upon above The author of this ‘‘ merit. The assignment, is without contention This said: respect prosecutrix, matter, to this evidence of the given objection. thereto, In addition without testify, assaults of as to still *11 in chief.” not referred to opinion quoted portion correct the is of
The above a of as matter same, fault to find with we have no but as different obiter further observed: “These dicta we showing for, an of the saults were admissible objection part if an of even intent par. l. c. [State been v. Miller, had made. Campbell, Mo. l. c. Pat II; State v. ” 155.] l. c. 107 Mo. rick, Upon ques- of careful re-consideration the above quotation opinion, that we the last are now tion, properly un- above mentioned not declare the does law statutory der the statute is with where defendant age. years rape upon child under fifteen a female it such is immaterial what motive circumstances, Under may defendant to commit have induced the act, or committing in If what intention he was same. September, Lucy in Harris sexual years age under under fifteen was rape regard statutory guilty he without time, was done. the intent which act was with ^the independent, of a similar nature are for Other crimes pleaded tried and if in which defendant be convicted They separate information. counts of can have no bear- question, to whether on the as Harris un- August, nor der fifteen as to during defendant sexual intercourse whether with prior subsequent or Hence, said time. defendant’s acts any whether or intercourse, principle common female, fairness, should subject inquiry jury, before not be unless separate by count in the covered information, which proceeding respect him the State such independent charge, crime. as supreme of Missouri. court _
_State foregoing con- observations, from the V. Aside prior and viewpoint, the a Constitutional from sidered referred intercourse heretofore subsequent acts of sexual investiga- subject ought to be to, information. separate ckargecj[ and inde- UI1jegg pendent separate information. counts crimes, provides Constitution, II our
Section Article felony criminally prosecuted person,shall for that “no infor- than misdemeanor otherwise indictment etc. remedies,” It concurrent shall be mation, contem- of our Constitution evident, framers plated presumed every innocent of man to be They contemplated proven guilty. until crime give pre- accused the benefit of courts should prosecutions They sumption, in crimes. did not con- might template charge rape specific statutory August, pro- crime of 1917,and, *12 by attempt prove independent ceeding to another ambush, day January, the same nature on the crime 1st having no connection the consideration, with one under pleaded in information, which never been the any opportunity having without been afforded the accus- charge. plain, ed to meet said To our it is that the mind, in framers of said Section cases like intended, the one that us, before the set out in State should counts different independent separate, of. the information the crimes sought investigated to be at the trial. the Article
Section same our Constitution recognizes justice clearly the of contention, for it prosecutions “In there said: criminal the accused shall right ... have demand to the the nature and cause may accusation.” Does this mean, he in- be for the time at the formed first as trial, to nature and against respect independent in accusation him, to- these in not mentioned crimes contemplate, information? it Or, does inquiry respect can no be had in independent crimes, which bearing these have no .on question, by in unless charges, case information so appropriate count, order that defendant,; in-the Mo, TERM, y. Harris
_State as justice, be orderly informed administration upon meet? charges which he will tbe called tested whether conclude, We, therefore, provisions principle, Constitution, by of our charged the one aside from intercourse, similar acts of rape, statutory tend to show information, investigated covered trial, unless at the not be should constituting a separate count, the information injustice separate the State can be No crime. done prose- if the construing for, indicated, above law as tending possession cuting attorney evidence inis subsequent character, acts of similar prior show separate investigate at the trial under the same he can being required to without information, of the counts proceed. By pursuing the he count will elect on which guarantees the accused a con- the State course, latter knowledge open, nature in the with trial stitutional presented him. and accusation subject Pursuing us still let further, the same VI. presented here. The case defend- consider the concrete charged having information in the with committed ant statutory rape by having sexual intercourse crime a female child under fifteen years> County, in Grreene Missouri. It was other Acts only necessary prove, State to trial, intercourse County, Missouri, Grreene at the time in fifteen said information, that at date she under age. If defendant had sexual intercourse *13 guilty Harris under circumstances, he was said rape statutory regardless at that of the motive regardless with which he intent committed the same; past regardless his life character, and conduct, subsequent acts conduct. Other acts of similar subsequent prior charged either character, to- that according admissible in information, evidence, conception pleaded separate of the unless law, our 114 SUPREME COURT OE MISSOURI.
State v. independent investigatеd counts as accord- crimes, and ingly. sustained conclusions heretofore announced are well among considered found which authorities, following: Spray, numer 174 Mo. 569, State Boatright, 51;
ous cases cited; 182 Mo. l. c. State v. Hyde, State v. l.Mo. c. 224-5; Teeter, Mo. 475; Bersch, 253Mo. Wellman, 302; State v. l.Mo. c. 207 may L. 414-5-6, S. R. C. sec. 809;W. p. contrary, but Authorities be found to the keeping provisions Constitution'supra, in mind the of our speak for crimes of the character here, regardless of themselves,- or intent with motives they are committed, should not he followed in kind case. questions necessary have all We considered
VII. re~trial cause. On account Conclusion pointed the errors heretofore out, cause is reversed and remanded for a new trial. White, con- G., except G., paragraphs Mosley, curs, as to 4, 5, concurs. foregoing opinion PER CURIAM:—The Railey, hereby adopted opinion
0. , is court. Walker Williamson, JJ., concur; Williams, J., P. concurs paragraphs 1, 2, 3 and but dissents as to the ex views pressed paragraphs ground 4, 5 and 6, on the prior evidence of acts sexual intercourse between persons, purpose same prov admissible, not for the intent, but for the proving. guilty of crime with which charged, he stands under rule, v. Palmberg, announced in 199 Mo. l. c. 250.