117 Mo. 586 | Mo. | 1893
Defendant was convicted in the criminal court of Greene county, for taking away one, Nellie Moote, a female, under the age of eighteen years, from the custody of her father, Ephraim Moote, without his consent, and against his will, for the purpose of concubinage, by having illicit sexual intercourse with her. The offense was committed in Webster county where the indictment was found, the venue having been subsequently changed to Greene county, where the trial was had.
The facts, as disclosed by the testimony, are as follows : For several months prior to the twenty-second day off January, 1892, the defendant had taught the district school near the residence of the father of the prosecutrix in Webster county; that he, being a preacher of the gospel, had also held religious meetings in that portion-of the county, and, among his other pupils at school, and auditors at church, was Nellie, the thirteen-year-old daughter of Ephraim Moote. Defendant was a man of family, but pretended to fall in love with Nellie, and arranged and executed an elopement with her on the night of January 22, 1892. Upon this night, and according to his prearranged plans, she left the home of her father and met defendant about one-half mile down the road, where he was in waiting with a buggy and team already secured at a livery stable. They drove to Marshfield, and there took the train for St. Louis; from St. Louis they went to Nashville, Tennessee, at which place they remained over night, occupying the same bed at the hotel at which defendant had registered as J. M. Ford, and wife.
It also appears that the father and mother of the prosecutrix had been divorced, and that the mother, Mrs. A. Oswald, lived at Hutchinson, Kansas. The father had the care and custody of the daughter. The case is here by appeal.
The first contention on the part of the defendant is that the court committed error in giving instructions to the jury on the part of the state, and in refusing' instructions prayed for by defendant. We have examined with much care the instructions, and have arrived at the conclusion that they are hot obnoxious to the objections urged against them. They presented the law of the case to the jury fairly and very favorably to the defendant, and those which were asked by him and refused were mere abstractions, and properly refused. Those given covered the entire case and were fully jus-1 tified by the evidence.
On the cross-examination of Ephraim Moote, the father of the prosecuting witness, he was asked if he did not know that there was an order ,of court' decreeing the care and custody of Nellie to her grandmother, Mrs. Sarah P. G-eorge. This question was asked, of course, for the purpose of showing that Nellie was not, at the time of the commission of “the offense,' in the legal care and custody of her father, Ephraim. An objection -to this question was made, because not the best evidence, which was, by the court, sustained, and, we think, rightly so. Yerbal testimony is not admissible for the purpose of showing the contents of a record of a court when the record itself is in existence.
It is also argued by counsel for defendant that the criminal intent on the part of the defendant, was wanting, and that the verdict of the jury was not warranted by the evidence. This court has so often •decided that it will not undertake to determine the weight of the evidence, and, whether convictions are sustained thereby or not, that it is not deemed necessary to cite authorities upon that question. The defendant in this case, clothed, as he was, in the garb of a minister of the gospel, the head of a family, and the tutor of a mere child, a girl not yet fourteen, years of age, was guilty of a most heinous crime, if the girl witness is to be believed, for which the punishment he received at the hands of the court and jury, was, in our opinion, by no means commensurate with the gravity of the offense. Judgment affirmed.