136 Mo. 20 | Mo. | 1896
The defendant appeals from a conviction and sentence of three years in the penitentiary, the charging portion of the indictment being as follows: That A. E. Prather, on the eleventh day of June, A. D. 1895, at the county of Vernon and state of Missouri, in and upon one Birdie Harpold, a female child under the age of fourteen years, to wit, of the age of six years, unlawfully and feloniously did make an assault with intent, her, the said Birdie Harpold, then and there feloniously to unlawfully rape and carnally know and abuse, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.
This indictment, which is based on sections 3480
The word “rape” being unnecessary, may be rejected as surplusage.
The evidence tended to show that Birdie Harpold, a female child about six years of age, resided with her father, a barber, at Nevada, Missouri, during June, 1895; that defendant was at Nevada, engaged in peddling maps for Rand, McNally & Company; that on June 11 he was in the barber shop of the prosecutrix’ father, and started with the little girl to go to the show; that he walked, holding the child’s hand, through the town and out to the woods; that the two were seen together at different places between the shop and end of the street by divers persons who were witnesses for the state.
The child testifies that when they got into the woods defendant “unbuttoned her panties,” and she, crying and screaming, broke away from him and ran back to town; that defendant told her not to tell her mamma. Several witnesses testify to having heard her screams, to having seen her running down the street with her “panties down,” and to having seen defendant returning from the woods and following down the same street taken by the child some five minutes after the child had passed. It is also shown that this child asked the first person she saw upon her return to town, Mary Driscol, to accompany her a part of the way home; that she was scared, and crying; that upon arriving home she told her mother of the occurrence.
Defendant denied the charges; denied that he accompanied the little girl along the street to the woods, or that he was in that part of town during the day, but in this is contradicted by several witnesses.
It probably would have been sufficient without the little girl’s testimony, but on this we need not speculate, as we regard her testimony competent. The admission of the testimony of infants of tender years, rests largely in the discretion of -the trial court and with that discretion we will not lightly interfere. We see no cause to do so in this instance, as the child appears to be one of more than usual sprightliness and intelligence. The competency of an infant as a witness can not be measured by mere age, but by the apparent capacity in the given case. No rule in advance can be ^formulated; it must be left to the trial court in the exercise of a wise discretion, to pass upon the competency of the infant in each case as the question arises. 1 Rice, Evid., p. 539, and cases cited.
As to defendant’s application for a continuance, it suffices to say that the bill of exceptions does, not record any exceptions saved to the denial of the application. . It is true the clerk recites in the record that an exception was saved on the point mentioned, but this will not answer, since the only repository of matter of exception is the bill of exceptions. Nichols v. Stevens, 123 Mo. loc. cit. 119; Parkinson v. People, 24 N. E. Rep. 772, and cases cited; Gould v. Rowe, 127 Ill. 251, and cases cited. Upon these considerations we affirm the judgment. All concur.
