137 Mo. 307 | Mo. | 1897
At the January term, 1896, of the circuit court of Barton county the defendant was in-
Flora Ooggin was fifteen years of age on the twenty-eighth day of October, 1895. She was a poor country girl having lived upon a farm in Dallas county all her life from the time she was a few months old. At the time she disappeared from her home in that county with defendant she was living at home with her widowed mother and a brother about eighteen years of age. The nearest schoolhouse from where she lived was about two and one half miles.
Defendant had formerly lived in Dallas county, and married a lady who was at the time living in that county. He thereafter moved to Lamar in Barton county, where he was living with his wife and child at the time of the alleged offense. He became acquainted with Flora Coggin at the house of a neighbor of her mother whom he was.visiting some three years before the trial, but nothing unusual occurred between them .at that time. Afterward, he again visited the- neighborhood, and called at the house of Mrs. Ooggin, told the family of his nice home in Lamar, of his baby, and wanted her mother to let Flora go home with him, stay at his house and go to school. To this arrangement her mother consented, but after she had started with defendant her mother followed, overtook them, and took her back against both her protest and that of defendant.
The night after they started to Lamar they traveled all night in the buggy, and some time during the night while on the road in Polk county, defendant had criminal connection with her. They reached defendant’s home in Lamar about dark the next evening, where she remained about six weeks, during which time defendant had intercourse with her from two to three times per week. She became pregnant and defendant undertook to produce an abortion on her by administering to her spirits of turpentine.
About the fourteenth of October, 1895, defendant, his family and Flora, left Lamar, he sending Flora to her grandparents in Hunt county, Texas, from whose place she subsequently returned to her mother’s home in Dallas county.
On the sixteenth day of November, 1895, he was apprehended by the sheriff of Barton county, Missouri, at Fort Smith, Arkansas, and while aboard a train of cars en route from that place to said county, and while the train was running at a rapid rate of speed, he jumped from it, and attempted to make his escape, but
Upon the part of defendant there was evidence tending to show that Flora Ooggin was of unchaste character at the time of the commission ‘of the alleged offense.
After the evidence was all in, defendant asked an instruction in the nature of a demurrer thereto which was refused by the court, and defendant saved his exceptions.
It is claimed by defendant that the instruction in the nature of a demurrer to the evidence should have been given. This contention has for its predicate the fact that the prosecuting witness testified upon cross-examination that the first act of illicit intercourse between her and the defendant occurred in the county of Polk, and not in the county of Barton where the indictment was preferred.
The indictment charged the offense to have been committed in Barton county, and the evidence showed very clearly that defendant, on different occasions during the four to six weeks that the prosecuting witness was under his care at his house in that county, had criminal connection with her as often as from two to three times a week. The fact that he had theretofore, while m route from her home to his in another county through which they passed, and while she was under his care and protection, had carnal knowledge of her, is no sufficient reason, we think, why he should not be punished for the offense committed in Barton county. Therefore there was no error committed in refusing the instruction in the nature of a demurrer to the evidence, nor the instruction asked by defendant presenting the same theory of the case.
Under section 3487, Revised Statutes 1889, it is made a felony for any person, to whose care or protec
The evidence upon the part of the state showed that Flora Ooggin had been confided to, and was in fact under the care and protection of, defendant at the time of the commission of the offense, and it makes no difference that the arrangement was made with her personally. State v. Terry, 106 Mo. 209; State v. Hill, 134 Mo. 663. Nor does it lie in defendant’s mouth to say that his victim was not of contractual age at the time she confided herself to his care and protection. He can not shield himself from punishment for his wrongdoing under any such defense.
There was no error in refusing instruction I) asked by defendant, as the same instruction, in effect, was given by the court on the part of the state. Besides, the refused instruction was objectionable in that it was directed at any juror who might have a reasonable doubt of defendant’s guilt, and not to the jury as a body.
After defendant jumped from the train, and made his escape, and was subsequently recaptured at Roger’s, Arkansas, by the marshal of that city, and was in his custody and that of an assistant by the name of Hop-wood, he inquired of them the charge for which he was
After the officers having him under arrest made the further statement that no promise was made or any inducements of any kind offered defendant to make the statement, but that it was entirely free and voluntary upon his part, the court overruled the objection, and in this defendant claims error was committed. As there was no legal ground upon which to bottom the motion it was properly overruled. State v. Patterson, 73 Mo. 695; State v. Phelps, 74 Mo. 128; State v. Hopkirk, 84 Mo. 278; State v. Robinson, 117 Mo. 649.
All the instructions given upon the part of the state are criticised by defendant, but no substantial objection is found to exist against any of them. They seem to be in harmony with the adjudications of this court with respect to offenses committed under the same statute, and in so far as we have been able to discover, free from just criticism.
A final contention is that the defendant was not present in court, but was confined in jail when his motions for new trial and in arrest were overruled, and when the judgment was rendered and sentence passed upon him.
Whatever may be the facts outside of the record with regard to this contention, the record shows that defendant was not only out on bail, but that he was present at the time the verdict was received by the court, and does not show that he was in jail at any time thereafter.
The statute seems to be mandatory, but as no error was committed during the trial of the cause up to the time of the rendition of the judgment, which relates to a part of the case which comes after verdict, the cause will be remanded upon that ground only, and the trial court directed to enter judgment and sentence upon the verdict rendered, having the prisoner before the court at the time. Jewell v. Commonwealth, 10 Harris, 94; McCue v. Commonwealth, 78 Pa. St. 185; State v. Snyder, 98 Mo. 555.