State v. Jones
61 Mo. 232
Mo.
1875
Check Treatment
Sherwood, Judge,

delivered the opinion of the court.

■ The defendant is charged with the crime of rape, alleged to have'been perpetrated on the person of a young girl who had not attained her fourteenth year.

*235I.

From aught that appears in the record to the contrary, we must presume that the regular panel was exhausted or engaged in other causes, and so it was perfectly competent to summon a jury from the by-standers. (State vs. Pitts, 58 Mo., 556.) Nor was it necessary that a venire facias should issue to the sheriff for this purpose. (Samuels vs. State, 3 Mo., 68.) Besides, it does not appear that any objections were made or exceptions saved to the manner in which the jury was summoned. (Samuels vs. State, supra.)

n.

There was evident error in permitting the mother of the prosecutrix to detail the particular facts related to her by her daughter at the time of making complaint of the injury. Such facts are not admissible in evidence, except when elicited from the complainant on cross-examination or brought forward as confirmatory of her testimony after it has been impeached. The authorities on this point are almost unbroken in their uniformity. (3 Greenl. Ev., 213, cas. cit.) The defendant’s objections in this regard should therefore have been sustained.

HI.

It does not affirmatively appear from the record that the defendant was personally present during the trial. This omission must result in a reversal of the judgment of conviction. (Wagn. Stat,, 1103, § 15; State vs. Buckner, 25 Mo., 167; State vs. Cross, 27 Mo., 332; State vs. Shoenwald, 31 Mo., 147; State vs. Braumschweig, 36 Mo., 397; State vs. Mathews, 20 Mo., 55.)

IV.

The instructions given on the part of the State as well as on behalf of the defendant defined with sufficient clearness the offense with which the defendant is charged, and the instructions which the court refused to give at the instance of the defendant were either faulty as not containing a true exposition of the law, or else were mere comments upon the evidence. As this case must be re-tried, it is thought unne*236cessary to notice the instructions more in detail, as the court below on a re-trial can, if the law of the case is not fully declared in the instructions asked, of its own motion prepare those which will exhibit to the jury in general and appropriate terms, without comment upon the evidence, all the law which has any bearing on the facts established by the testimony. And this duty clearly devolves on the court if not entirely satisfied with the instructions asked. (State vs. Mathews, 20 Mo., 55; State vs. Hardy, 7 Mo., 609; State vs. Schoenwald, 31 Mo., 147.)

Y.

It is claimed for the defendant that the verdict is wholly unsupported by the evidence, and we are cited' to the case of the State vs. Burgdorf, 53 Mo., 65. But that case is unlike the present one in these respects; that here, the prosecuting witness was not of such mature years as the prosecutrix in that case, and besides the alleged crime here was committed at a spot remote from travel, and where outcries would have been unavailing. As to whether there were impossibilities or contradictions iti the story of the girl, these are matters which, under appropriate instructions, must be left to the triers of the fact by whom alone the degree of credibility which should attach to her testimony will be weighed and determined.

The judgment is reversed and the cause remanded.

All the other judges concur.