97 Mo. 668 | Mo. | 1888
Indicted for the seducing and debauching, under the promise of marriage, Zerelda Hall, the defendant, put upon his trial, was found guilty, his punishment assessed at three years in the penitentiary - judgment and sentence accordingly, and he appeals to this court. For the reversal of the judgment, numerous grounds are assigned, which are to be passed upon in this opinion.
II. The crime charged in the indictment was, under the provisions of section 1259, R. S., a felony, because punishable by imprisonment in the penitentiary, and the fact that it might be punished by a lighter punishment does not rob it of its felonious attributes. This is well settled. R. S. sec. 1676; Johnston v. State, 7 Mo. 183; Ingram v. State, 7 Mo. 293; State v. Green, 66 Mo. 632. For these reasons the statute of limitations, section 1705, R. S., invoked by defendant does not apply here, and the prosecution was begun in time.
And, though the strictness of the rule requiring two witnesses in order to convict of perjury has long since been relaxed, yet it is now uniformly held that the evidence offered in corroboration of the accusing witness must at least be strongly corroborative of such witness, and something more than sufficient to overcome the oath of the prisoner and the legal presumption of his innocence. Parker, C. J., in Queen v. Muscot, 10 Mod. 192, quaintly and tersely expresses the rule by saying : “Therefore, to convict a man of perjury, a probable, a credible witness is not enough ; but it must be a strong and clear evidence, and more numerous than the evidence given for the defendant.” See also, State v. Heed, 57 Mo. 252; 1 Greenlf. Ev. (14 Ed. ) sec. 256, and cas. cit.; 2 Whart. Crim. Law, sec. 1319, and cas. cit.
Wharton, speaking of the offense of perjury, says : “ The preponderance of contradictory proof must go to some one-particular false statement.” Whart. Crim. Evid., sec. 387, and cas. cit. In Iowa the statute
The statute of New York is like that of Minnesota, and under that statute it has been ruled in the last mentioned stfite that the prosecutrix may be supported by “proof of circumstances which usually attend an engagement of marriage.” Armstrong v. People, 70 N. Y. 38. Similar rulings have been made in the other states, the statutes of which have been quoted ; but it is too plain for argument that to give such a construction to our own statute on the subject would be contrary to its letter and at war with its obvious meaning. And, in respect to its meaning, it must be presumed to mean just what it says. R. S. sec. 3126.
These remarks are prefatory to the consideration of the second instruction given at the instance of the state as follows :
“The jury are instructed that they may find the fact of seduction upon the uncorroborated testimony of the prosecuting witness, but as to the promise of marriage, there must be evidence corroborating the prosecuting witness; but this may be supplied by circumstances proven in evidence.”
This instruction entirely ignores the plain statutory language that “ the evidence of the woman as to such promise must be corroborated to the same extent required of the principal witness in perjury.” It is also faulty in other particulars : It does not designate the circumstances which would supply the necessary support to the story of the prosecutrix, nor does it define what corroborating means. In State v. Chyo
IY. The theory of the defendant was that there was illicit intercourse, but no promise of marriage, and his testimony supported that theory. He had the right, therefore, to have that theory presented to the jury ; this was done in the fourth instruction which he asked, declaring that: “If the jury believe from the testimony that defendant, in the year 1886, had carnal intercourse with Zerelda Hall, and that she willingly submitted to defendant, without any promise from defendant to marry her, the verdict of the jury should be for the defendant.”
Y. The language of the statute upon which the indictment in this case was found, as before stated, is this : “If any person shall, under promise of marriage, seduce and debauch any unmarried female of good repute,” etc. R. S., sec. 1259. Though in common parlance, the crime made punishable by the foregoing statute is simply termed seduction, yet each of the words “ seduce” and “debauch” has its appropriate meaning, and this, under the familiar rule which presumes that the legislature, in drafting a statute, .employ no superfluous words, or words without a purpose. There are two steps necessary to be taken in order to consummate the crime under discussion: First, the female must be seduced, that is, corrupted, deceived, drawn aside from the path of virtue which she was pursuing ; her affections must be gained, her mind and thoughts polluted, and second, in order to complete the
These remarks are made in order to the consideration of the fifth instruction given at the instance of the state as follows:
“5. If the jury believe beyond a reasonable doubt that the defendant, at the county of Callaway, Missouri, and within three years of the finding of the indictment, promised Zerelda Hall to marry her if she would permit him to have sexual intercourse with her, and if she did so on the faith of that promise, and she was at the time under the age of twenty-one years and. unmarried and of good repute, they will find defendant guilty and assess his punishment at not less than two nor more than five years imprisonment in the penitentiary, or by a fine of not exceeding one thousand dollars and by imprisonment in the county jail not exceeding one year.”
The vice of that instru ction consists in not requiring the female in question to be “seduced;” tó be drawn aside from the path of virtue, but simply that if without any such arts and wiles - as are calculated to operate upon a virtuous female and to lead her astray, the defendant made to the prosecutrix a plain business offer that he would ‘ ‘ marry her if she would permit him to have sexual intercourse with her, and if she did so on the faith of that promise,” that then he
VI. There were many circumstances connected with the trial of this cause which rendered the testimony of the prosecuting witness open to very jealous observation. The trial occurred on the twenty-sixth of November, 1888, the indictment having been found but two days previously, and the complaint was made about that time. According to her testimony the first congress between defendant and herself occurred in December, 1886 (but what time in that month she does not state), and the result of their illicit interviews was a child fifteen months old at the date of trial. This would prove the child to have been born on the twenty-fifth of August, 1887 ; but the usual period of gestation, 276 to 280 days, would, according to the books, throw the date of conception into November, 1886. 2 Whart. & Stille Med. Jur., secs. 41, 55. But she would not designate what time in December the first amorous encounter took place; if on the fifteenth day of December, this would give but 254 days between conception and birth, even if conception took place eo instanti. If on the first day of December, but 269 days, and there is no pretense that the child was not fully mature when born. Granting, however, that she was in error as to the time when the
The foregoing remarks are only made in order to show the caution with which this cause should have been tried, considering the peculiar circumstances which surrounded it, and the great length of time which intervened between the alleged criminal act done and its prosecution begun. Full opportunity, therefore, should have been afforded to sift the witness and to test and ascertain her animus and the- motives which prompted her, after so long a time had elapsed, to institute the present prosecution. For this reason, she should have been required to answer the question whether the idea of prosecuting the defendant did not spring into being upon his marriage to another. It is always allowable to ask similar questions in order for the jury to understand, and understand fully the attitude of the witness, and especially of a prosecuting witness towards the accused. State v. Cooper, 83 Mo. 693; 1 Whart. Ev., sec. 408, pp. 544, 545, 547, 549, 561; 1 Greenlf. Ev., sec. 450.
Because of the errors aforesaid, the judgment should be reversed and the cause remanded.