State v. Kelly
150 S.W. 1057
Mo.
1912
Check Treatment
BLAIR, C.

— Under an information charging him with carnally knowing an unmarried female of previously chaste сharacter,' between the ages of fourteén *493and eighteen years, Walter Kelly was convicted in' the circuit court of the city ‍​‌​‌​‌​‌‌​‌​​​​​​​‌​​​‌‌‌‌‌‌​‌​​​‌​​‌​‌​​‌​‌​‌​​‍of St. Louis, sentenced to six months in the workhouse, аnd has appealed. , .

I. As the record stood at the close of the evidence, the only, actually contested issue of the fact was the previous chastity of the ■ рrosecutrix. ■ The trial court instructed, among other things, as to reasonable doubt and the presumption of innocence, and also, over appellant’s objection аnd exception, gave the following:

“The court further instructs you that the law presumes that еvery ‍​‌​‌​‌​‌‌​‌​​​​​​​‌​​​‌‌‌‌‌‌​‌​​​‌​​‌​‌​​‌​‌​‌​​‍woman is of chaste character until the contrary appears.”

The learned Attorney-General frankly concedes the seriousness of the question presentеd by the' giving of this instruction. On the question whether the presumption of chastity obtains in a case of this Lind ¿nd relieves the State of the necessity of bringing forward, in the first instance, evidence of the previously chaste character of the prosecutrix, the decisions in other jurisdictions are not in accord. This court has heretofore clearly indicated (State v. McMahon, 234 Mo. 611; State v. McCaskey, 104 Mo. l. c. 647; State v. Hill, 91 Mo. l. c. 427) its view that the previous chastity of the prosecutrix is an element of the offense, under our statute, which must he both charged and proved. Those text-writers ‍​‌​‌​‌​‌‌​‌​​​​​​​‌​​​‌‌‌‌‌‌​‌​​​‌​​‌​‌​​‌​‌​‌​​‍and encyclopaedists who have expressed an opinion agree this is the sounder and more logical rule (Bishop on Statutory Grimes, Sec, 648; 1 Bishоp’s New Crim. Pr,oc./ Sec. 1106; 4 Wigmore on Evidence, Sec. 2528; 25 Am. & Eng. Ency. Law, .p. 240) and an examination of the cases tends only to confirm the accuracy of this' conclusion! It is undoubtedly true that the practical universality of chastity among women justly gives rise, in most circumstánces, to a presumption of chastity on the part of an individual member of the sex; .but 'in criminal prosеcutions the presumption of chastity *494logically yields to the presumption of defendаnt’s innocence when the two directly conflict, as in this case. It is suggested there can bе no such thing as conflicting presumptions and, hence, the conclusion that the presumрtion of chastity disappears because of its conflict with the presumption of innоcence is unsound. Whether this theory is logical when applied to presumptions arising frоm facts proved by the evidence in a given case it is unnecessary to inquire, since the presumption of chastity does not arise on this record in that fashion. Whether the prеsumption of innocence be called merely the reason for the rule requiring proof of guilt beyond- a reasonable doubt, or be ‍​‌​‌​‌​‌‌​‌​​​​​​​‌​​​‌‌‌‌‌‌​‌​​​‌​​‌​‌​​‌​‌​‌​​‍held to be, of itself, substantive evidence in defendant’s favor, it cannot long survive if general inferences and presumptions not arising out of the facts proved by the evidence in the case are permitted to оverthrow it. Whatever may be theoretically true as to the possibility of a conflict of presumptions, the jury’s perplexity when confronted in this case with instructions embodying both the presumption of innocence and that of chastity and their unavailing effort to securе an explanation as to which presumption took precedence, evidences the possibility of a practical conflict productive of confusion аnd injustice. The instruction complained of should not have been given.

II. There was no error in admitting evidence of the pregnancy of prosecutrix (State v. Palmberg, 199 Mo. l. c. 258) since, as has often been pointed out, pregnancy is evidence of intercourse аnd intercourse is one of the constitutive elements of the offense charged.

So far as concerns the cross-examination of defendant as to his age it will suffice to sаy that, if erroneous, the error can easily ‍​‌​‌​‌​‌‌​‌​​​​​​​‌​​​‌‌‌‌‌‌​‌​​​‌​​‌​‌​​‌​‌​‌​​‍be obviated on another trial; and the further objections to the instructions may be avoided by observance of the rule laid down in *495thе preceding paragraph. The evidence tending to show prosecutrix to he unmarried is not as clear as might be desired and, it may he added, it is to he hoped care will he taken to eliminate all question (State v. DeWitt, 186 Mo. l. c. 68) as to the sufficiency of the verdict in case another trial is had and conviction secured.

The judgment is reversed and the cause remanded.

Roy, G., concurs. PER CURIAM.

— The foregoing opinion of Blair, C., is adopted as the opinion of the court.

All the judges concur.