243 Mo. 503 | Mo. | 1912
The defendant was convicted in the circuit court of Jasper county, April term, 1911, of having carnal knowledge of Loreene Decatur, an unmarried female of previously chaste character between the ages of fourteen and eighteen years, and sentenced by the court to two years in the penitentiary.
The evidence on the part of the State tended to prove that the prosecutrix, who resided with her parents at Webb City, was between fourteen and eighteen years of age at the time of the commission of the alleged offense, and that defendant was a mute, married, about fifty-two years of age, and carried on a shoe repairing shop in said city. The prosecutrix testified that it has been her custom to carry shoes for her mother and neighbors to defendant’s shop for repairs for about a year and a half before the filing of the in
The prosecutrix further testified that she had never had sexual relation with any boy or man other than the defendant. Her testimony as to her frequent visits to defendant’s shop was corroborated by a horseshoer, whose shop was a short distance west of that of defendant, and by an employee of a bakery situated across the street from defendant’s shop. These two witnesses testified that when prosecutrix visited the shop they would see defendant go to the door, look up and down the street, and then close the door. This was noticed by them many times.'
Defendant testified through an interpreter. He denied that he ever had or attempted to have intercourse with the prosecutrix, or that he ever touched or tried to touch her.
1. The defendant urges error in that the court refused to compel an election by the State, at the close of the testimony of the prosecutrix, of the particular act on which it would stand. The court held that an election would be proper at the close of all the evidence for the State. Both court and counsel proceeded on the wrong theory. In a prosecution for statutory rape upon a female under fourteen years of age, each act of intercourse is a separate felony, and an election is proper at the earliest time when it is apparent that the State can make an intelligent election. [State v. Hurley, 242 Mo. 452.] In the case at bar there is no election. The defendant can be convicted for the first offense only, because then only is the prosecutrix of
2'. Defendant claims that the following instruction given by the court is erroneous:
“No. 2. You are instructed that if you find and believe from the evidence in this case, beyond a reasonable doubt, that at the county of Jasper and State of Missouri, on or about the--day of April, 1911, or at any time within three years prior to the 27th day of April, 1911, the date of the filing of the information in this case, the defendant, N. J. Henderson, did unlawfully and feloniously have carnal knowledge of the witness, Dorenna Decatur, and if you further find that said Dorenna Decatur was an unmarried female of the age of more than fourteen years and less than eighteen years at said time, and further find that said Dorenna Decatur was of previously chaste character, and you further find that the defendant was over the age of sixteen years at the time, you will find the defendant guilty as charged in the information, and so say by your verdict.”
As the prosecutrix was of chaste character only when the first act testified to by her was committed, this instruction necessarily limited consideration by the jury to such first act. It differs from the instruction condemned in the Schenk case, supra, in that the latter related the question of chaste character to the time charged in the information, and not to the time when the act was committed. It is further objected that this instruction, covering three years, included a period before the prosecutrix was fourteen years old. As to this objection, it is sufficient to say that there was no evidence of any act committed before she was fourteen years old.
3. The motion to quash cannot be considered as it is not preserved in the bill of exceptions. [State v. Finley, 193 Mo. 202; State v. Tooker, 188 Mo. 438;
4. There was no error in permitting testimony of subsequent acts. They were not separate crimes, bnt merely corroboratory of the testimony as to the first act. The views expressed in State v. Palmberg, 199 Mo. 243, refer to statutory rape upon a girl under fourteen, when each offense is a separate felony.
We find no reversible error in the record. The judgment is therefore affirmed.
