202 Mo. 86 | Mo. | 1907
This cause is here upon appeal by the defendant from a judgment of the Henry Circuit Court, convicting him, under the provisions of section 1845-, Revised Statutes 1899', of defiling his ward.
At the September term, 1905, of the circuit court of Henry county the grand jury returned an indictment against the defendant, embracing in such indictment three counts. The first count charged him, under
Before the trial proceeded the defendant withdrew his plea of not guilty and filed his plea in bar of this prosecution. We deem it unnecessary to reproduce in full the allegations contained in this plea. It is sufficient to state that it is predicated upon the acquittal of the defendant of the charge in the first count. It fully and correctly sets forth the pleadings and record in connection with the trial in which a verdict of not guilty as to the first count was returned; makes allegation that the offense as charged in the second count grew out of the same transaction as that contained in the first count, of which-defendant had been acquitted; that the defendant is the same person who was tried and that the evidence offered wherein the defendant was acquitted, was to the effect that Opal Knaus was fifteen years old and that she was a pupil of defendant, who
At said trial the State’s evidence substantially tended to show that the defendant was a school teacher by occupation, and that he taught one term and was principal of school in Urich, Henry county, Missouri. Prosecutrix lived with her widowed mother in the town of Urich, and attended the school which defendant taught. This term of school opened in September, 1904, and continued till the following May, when defendant taught a summer school. Shortly after the opening of school, defendant began paying attentions to prosecutrix, who was then nearly fifteen years of age. Defendant would hand love verses to prosecutrix, read them to her and say that they applied to “our case.” Defendant was a married man, but was not living with his wife. When prosecutrix would go up with her class to recite, defendant would always borrow
The defendant’s evidence tended to prove that prior to the offense charged, defendant enjoyed the reputation of being a man of good character. That most of the advancements at the school were made by prosecutrix, who brought defendant flowers; and that defendant never encouraged her any. The evidence for the defense further tended to prove that prosecutrix never allowed any other scholar to loan her or his book to defendant, but promptly handed him her book. The defendant did not testify in his own behalf, but offered certain records, in support of his theory of former jeopardy, which the court refused to admit in evidence.
At the close of the evidence the court fully and fairly presented the law in its instructions upon the facts as herein indicated. The defendant requested the court to give instructions numbered 1, 2, 3 and 1, which were refused by the court. Numbers 1 and 2 were in effect a demurrer to the evidence, requesting the court to direct the jury that under all the evidence, the record and indictment in the cause they should acquit the defendant. Number 3 in substance told the jury that if they found and believed from the evidence that the visits of the defendant to the house of Opal Rnaus were
The cause was submitted to the jury upon the evidence and instructions and they returned a verdict finding the defendant guilty as charged in the second count of the indictment, and assessed his punishment at two years in the penitentiary. Timely motions for new trial and in arrest of judgment were duly filed and by the court overruled. Sentence and judgment was entered in accordance with the verdict and from this judgment the defendant prosecuted this appeal, and the record is now before us for consideration.
OPINION.
The principal complaints of error by the appellant, as disclosed by the record, may thus be briefly stated:
1st. It is insisted that the court erred in sustaining a demurrer interposed by the State to the plea in bar.
2d. It is claimed that the court erred in the admission of evidence as to the acts of sexual intercourse between the defendant and the prosecutrix after school hours, insisting that the relationship contemplated by the statute of teacher- and pupil had been severed by reason of the school having closed for the day.
3d. That the court erred in failing to instruct the jury fully upon all questions arising from the evidence and the record in the case.
•4th. That the court erred in refusing instruction numbered 3, requested by the appellant.
I.
Upon the complaint of appellant as to the action of the court in sustaining the demurrer to his plea in bar, we are unable to agree with counsel upon this insistence, and it is sufficient to say upon this proposition that the law applicable to it was settled in the recent case of State v. Laughlin, 180 Mo. 342. We find no good reason for departing from the rules of law applicable to this subject, as announced in that case, and it must be taken as decisive of the proposition presented in the case at bar. There were three counts embraced in the indictment in this case, each of which constituted a separate and distinct offense, and the State having dismissed as to the third count and the jury having returned a verdict of not guilty as to the first count, it was purely a question of law apparent upon the record as to whether or not the acquittal of the defendant of the charge preferred in the first count or the dismissal by the State of the charge in the third count constituted a bar to the prosecution of the defendant for the offense charged in the second count. The action of the court in sustaining the demurrer interposed by the State to the plea in bar was manifestly proper. While it is true it was the same defendant, and the three counts were doubtless embraced in the indictment to meet the phases of the testimony that might follow upon the trial, it is clear that the essential elements necessary to constitute the offenses charged in the three separate counts are by no means alike, and it is manifest that the defendant may have very appropriately been acquitted of the charge preferred either in the first or third counts, and still be guilty under the evidence of the commission of - the offense charged in the second count.
II.
It is next insisted that the acts of sexual intercourse as developed at the trial of this cause, occurred subsequently to the closing of school for the day; that under that state of facts there was no such relation existing between the defendant and prosecutrix as is contemplated by the provisions of section 1845, and therefore the defendant was not guilty of the offense embraced in that section.
Appellant complains that the court failed to fully declare the law upon all questions arising upon the evidence and the record in the cause. It is clearly indicated in the brief of learned counsel for appellant that this complaint is directed at the failure of the court to instruct the jury upon certain letters written by the defendant, which tended to show admissions on his part. In other words, the complaint is that the court failed to give the jury the ordinary and usual instruction upon the admissions or statements made by the defendant. We are unable to see how this failure in any way prejudiced the rights of the defendant or in any way endangered a fair and impartial trial: This instruction usually tells the jury that what the defendant said against himself should be taken as true, but what he said in his own behalf could be believed or not as the jury thought the same to be true or false. If anyone has a right to complain at the failure of the court to give this instruction, we are of the impression that it is the State and not the defendant. This failure, in our opinion, did not constitute any reversible error.
IV.
It is earnestly contended by appellant that the court erred in refusing to give the jury instruction numbered 3 as requested by defendant. This instruction in substance told the jury that if they found and believed from the evidence that the visits of the defendant to the house of Opal Knaus were had with the knowledge or consent of her mother, then such knowledge or consent terminated for the time the relationship of pupil and teacher, and they should acquit the defendant.
It is sufficient to say upon this proposition that the action of the court in refusing to give such instruction was manifestly proper. In the first place, there was no
V.
Appellant contends that the remarks of the prosecuting attorney and his assistant, Judge Lindsay, in their arguments to the jury were of such a character as would warrant the reversal of this judgment. We have read with care and consideration the remarks objected to by counsel for appellant, and while we do not wish to be understood as approving that line of argument, yet.we are of the opinion that they are insufficient to authorize the reversal of this judgment. The court very plainly stated to counsel in the presence of the jury that the remarks were out of the record, and that his remarks were improper, and that in our judgment, so far as the remarks made in this cause were concerned, was sufficient to prevent the arousing of any prejudice in the minds of the jury by reason of such remarks. However, we will say now that it would have been much better if the trial court had more decisively insisted that counsel for the State should keep within the record, and enforce such power by appropriate method as was in the power of the court to do.
We have carefully considered in detail the disclo
We have indicated our views upon the principal legal propositions disclosed by the record, which results in the conclusion, finding no reversible error, that the judgment of the trial court should be affirmed, and it is so ordered.