171 Mo. 571 | Mo. Ct. App. | 1903
In this case the defendant was indicted at the February term, 1901, of the circuit court of Lawrence county, in pursuance of the provisions of section 1838, Revised Statutes 1899, in which he is charged as being over the age of sixteen and that he had sexual intercourse with one Hattie Higbee, an unmarried female of previous chaste character, between the ages of fourteen and eighteen years.
There was a trial upon this charge which resulted in the conviction of the defendant, and his punishment was fixed at two years in the penitentiary. From the judgment of the court this appeal is prosecuted.
The testimony upon the part of the State tends to establish the charge in the indictment. In fact, the 'defendant admits having intercourse with the prosecuting witness, Hattie Higbee, and bases his defense entirely upon her previous unchaste character. The State introduced evidence of her good moral character, and the defendant introduced testimony in rebuttal of that of- ■ fered by the State. Upon the question of chastity there is a sharp dispute. This question was fairly submitted to the jury and they determined it adversely to the defendant.
The motion for new trial only complains of two errors: first, that the verdict is against the evidence and the weight of evidence; secondly, that the court erred in not granting- a new. trial on the ground of newly-discovered evidence.
Upon the first complaint, that the verdict was against the evidence, it is sufficient to say that there was but one disputed question, that was as to previous chaste character. The testimony was conflicting upon that question; the court fairly presented it to the jury by appropriate instructions, and their finding- was .based upon substantial testimony; and this court will
No point is made upon the instructions in the motion for a new trial, hence, we are not called upon to review them. We will say, however, that they fairly presented the law upon the entire case.
The contention that is most earnestly urged, is the •error of the court in refusing to grant a new trial upon the newly-discovered evidence. As to this contention, the motion for a new trial is only supported by the affidavit of the defendant. It fails in an essential particular to conform with the long and well-settled rule announced by this court, in this, that the affidavits of the witnesses who it is alleged will testify to the newly-discovered facts, must ‘ ‘ accompany the motion for a new trial.”
It is said by way of accounting for the failure in this respect, that the witnesses refused to make the affidavits because it would incriminate them. The newly-discovered evidence is that the two witnesses would testify “that they had sexual intercourse with the prosecuting witness, prior to January, 1900,” hence, would not make affidavits or testify until the offense against them was barred by the statute of limitation.
This court can not afford to make the precedent upon the showing in this ease, that a new trial should be granted upon the unsupported affidavit of the defendant. To do so would simply destroy all the safeguards surrounding a formal and fair trial. There would be very ' few defendants with the penitentiary staring them in the face who could not make the necessary showing, if this just rule should be departed from. If having discovered this evidence after trial, entitled the defendant to a new trial upon his unsupported affidavit, alleging that they refuse to make the necessary affidavits for the same reason, if the testimony had been discovered before the trial and they refused to testify, the defendant could have insisted along the same line of argument that the
It was suggested in oral argument that the indictment in this case is insufficient for the reason that it fails to charge an assault. This allegation is not necessary in charging the offense under this statute. Section 1838, Revised Statutes 1899, does not contemplate an assault. The encounter under that section is not one in which violence is required; it is amicable and the acts done are with full consent. The indictment follows the language of the statute and clearly charges every element necessary to constitute the offense.
Finding no error in the record in this cause, the judgment will be affirmed.
