This cause is here upon appeal by the defendant from a judgment of conviction in the Scotland County Circuit Court on a charge of taking away from her father one Cora Smith, a female under the age of eighteen years, for the purpose of concubinage. The charge upon which this conviction is based is thus made by the prosecuting attorney in the information filed on March 18, 1908:
“Now comes Calvin H. Hilbert, prosecuting attorney within and for Scotland county, Missouri, and under his oath of office informs the court, and charges that Albert E. Jones, at the county of Scotland and State of Missouri, on the -- day of October, A. D. 1902, at the county and State aforesaid, did then and there being one Cora Smith, a female person under the age of eighteen years, to-wit, sixteen years old, unlawfully and feloniously take from one Solomon Smith, her father, he, the said Solomon Smith, then and there being in the legal charge of the person of the said Cora Smith, without the consent and against the will of the said Solomon Smith, for the purpose of concubinage, by having illicit sexual intercourse with him the said Albert E. Jones, against the peace and dignity of the State.” The information was duly signed and verified as provided by law.
Upon the trial of this cause, the State’s evidence tended to show that Miss Cora Smith was born on the 10th day of July, 1886, and was therefore sixteen years of age at the time of the commission of the alleged offense. This fact was proven by her father, mother and some neighbors, who remembered the place and the time of her birth. A family record was also introduced in evidence, but it was kept in an unsatisfactory manner; but went to the jury for what it was worth. In September, prior to her taking away, Solomon Smith, father of the prosecutrix, resided on a farm some miles from Memphis, in Scotland county. With his consent, prosecutrix came with her mother and two younger
On the part of the defendant there were numerous witnesses introduced whose testimony tended to show that the prosecutrix, Cora Smith, was more than eighteen years of age at the time of the alleged commission of the offense, and some of the witnesses who testified said that the prosecutrix had stated to them that she was eighteen years of age. Several witnesses also testified that the prosecutrix had said to them or in their presence that the defendant had never had sexual intercourse with her and that her pregnancy was the result of an intercourse with another man, a commercial traveler, who resided in St. Louis. Testimony was also introduced showing that the prosecutrix had testified at a hearing upon habeas corpus in Keokuk, Iowa, that the defendant did not have sexual intercourse with her and had always treated her all right. Other testimony was introduced as to statements made by her that the defendant was the best friend she ever had.
Defendant testified in his own behalf; he denied having intercourse with prosecutrix and denied furnishing her with any money. He denied showing her any letter, or trying to get her to leave Memphis. He further testified that on his way to Plymouth he stopped off at Keokuk, met prosecutrix and arranged for her to go to his home, there to remain till after her confinement; that this arrangement was made at his wife’s suggestion. After remaining at Plymouth for
The State, in rebuttal, offered numerous witnesses who testified to the good reputation of the prosecutrix, Cora Smith, for chastity and virtue.
This is a sufficient indication of the nature and character of proof upon which this cause was submitted to the jury to enable us to' pass intelligently upon the legal propositions presented by the record.
At the close of the evidence the court instructed the jury and seemed to undertake to cover every possible or imaginary theory of this cause. There were twenty-six or twenty-seven instructions given; a number of them entirely unnecessary. We shall not burden this opinion with a reproduction of all the instructions, and shall be content- with giving those challenged in the motion for new trial due consideration in the course of the. opinion. The seventh ground in the motion for a new trial was that the court erred in giving the following instructions on behalf of the State: 5, 7, 8, 9 and 11. They were as follows:
“5. If you believe from the evidence that the witness, Cora Smith, was at the time of the filing of the information, to-wit, on the 18th day of March, 1903, an unmarried female under the age of 18 years; that at the time she was under the care and control of her father, Solomon Smith, and an inmate of his home in
“7. The court instructs the jury that under the law the State is not required to prove, in order to convict the defendant, that he took the prosecuting witness, Cora Smith, from the house or the premises of her father, Sol. Smith; but the State is only required to prove that he took her or kept her away from her father’s care and custody, or that he met her away at her uncle’s at Memphis, Missouri, where she may then be staying, and that then or there he induced her to go to Keokuk, Iowa, or from there to Plymouth, Illinois, and then to Keokuk, Iowa, where he cohabits with her as man and woman, and if you believe that the defendant has done this, you will then find him guilty, as charged in the information, and assess his punishment in the penitentiary as hereafter provided, if you believe it was his intention and purpose at the time of taking her away to abide with her, and while so living, to cohabit with her.
“8a. A girl under the age of eighteen years who, with her father’s consent, works out as a domestic servant, and who returns to her father’s house and makes his house her home when out of such employment, or who, with the consent of her father, visits a relative, is still under the care and control of her father, while so at service, or visiting such relative, as much as if she were in her father’s house.
“9. The court instructs the jury that if you believe and find from the evidence that Cora Smith was the daughter of Solomon Smith and that she was under the age of eighteen years, and if you further find that she was in the habit of working out as a domestic servant, and had so worked out at a number of places during the past year, and that when out of work she made her home with her father, and if you further find that during the fall of 1902 she came to the city of Memphis, Missouri, to the home of her uncle and that her coming to Memphis was with the consent of her father, that
“11. Although you may believe the witness, Cora Smith, was a willing and consenting party to the taking away, and that no compulsion whatever was used in causing her to go away from her father’s control and home, it will be no defense or justification to any one who in any way assists or causes her to leave her father’s home and his care.”
Upon the submission of the cause to the jury they returned a verdict finding the defendant guilty as charged and assessed his punishment at imprisonment in the penitentiary for a term of two and one-half years. Motion for new trial was filed and overruled and judgment of sentence was pronounced and entered of record in accordance with the verdict. Prom this judgment the defendant prosecuted this appeal and the cause is now before us for review.
OPINION.
Appellant is not represented in this court and there is no assignment of errors or brief filed suggesting or in any way indicating the complaints of the defendant in respect to the disposition of his case in the trial court. However, in compliance with the duty imposed by the provisions of the statute, we will give the record now before us, disclosing the action of the court during the progress of the trial, such attention as the importance of the case and the proper administration of justice demand.
Upon the assignment of error as to the exclusion of evidence offered by defendant, it is sufficient to say that we have carefully considered the disclosures of the record and find but few exceptions preserved to the action of the court. From an examination of this record we are of the opinion that the exclusion of the questions and answers to which objections and exceptions were preserved was proper. Objections and exceptions were preserved to the testimony, offered by the State, as to the good reputation of prosecutrix. These objections were predicated upon the theory that her reputation had not been assailed, hence it was error to admit the testimony tending to show her good reputation. The record discloses that numerous witnesses gave testimony as to improper conduct of the prosecutrix, such as improper and promiscuous association with men at night, and to admissions by her of having sexual intercourse with other men and being pregnant by another man. We are convinced that this was a sufficient assault upon her character to justify and warrant the testimony offered by the State in rebuttal as to her good reputation. A similar contention was made in the recent case of State v. Speritus, 191 Mo. 24, and was ruled adversely to the defendant.
We have reproduced the only instructions to which the attention of the trial court was directed in the motion for new trial. Treating of the instructions, it is only necessary to say that there were twenty-six instructions given by the court in this cause, a number of them entirely unnecessary; however, the entire subject was covered, and those given for the defendant were
It may also be added that the record nowhere discloses any objection or exception to the action of the court in refusing any instructions offered by the defendant; in fact, it nowhere appears that defendant requested any instructions to be given to the jury; hence, it follows that there is nothing before us for review upon the subject of a refused instruction.
This leads us to the consideration of the only remaining assignment of error suggested by the motion for new trial, that is, as to the sufficiency of the evidence to support the verdict. The rule upon this subject has been so repeatedly and recently announced by this court that it is hardly necessary to again repeat
Without the aid of any suggestions on the part of the appellant we have gone through the record before us with the view of ascertaining the action of the trial court upon all questions arising during the progress of the trial. Our examination and consideration of it fails to disclose any substantial grounds for the reversal of the judgment. Finding no reversible error, the judgment should be affirmed, and it is so ordered.