108 Mo. 202 | Mo. | 1891
Defendant was convicted in the circuit court of Jasper county, of defiling Catherine Shoey, a female under the age of eighteen years, while under his care and protection as a domestic servant.
The evidence shows that the girl was employed by defendant on Saturday, July 12, 1890. She testified that on the Friday night following he committed the.
Defendant called witnesses by whom he undertook to prove in explanation of the return of complaining witness to the home of her parents, that defendant had intercepted her on that night in the fulfillment of an illicit'engagement with another man. He also undertook to impeach the credibility of this witness by proof of specific and independent immoral acts. The court excluded all this evidence, and its action, in so doing, is the chief ground of complaint.
I. The criminality of the act of which defendant was accused did not depend upon the character or reputation of the female defiled as in the case under section 3486 in a prosecution for seduction; nor does it depend upon the want of consent on the part of the girl to the act of defilement as in case of rape. R. S. 1889, sec. 3487; State v. Willoughby, 76 Mo. 216.
The TJtirpose of the law was to prevent guardians, employers and others occupying confidential relations to girls of tender years from abusing such confidence. The crime consists in the act of defilement. Neither a subsequent engagement to meet another person for illicit purposes,-nor going home at night because detected therein, or for whatever cause, was a defense to, or excuse for, the commission of the offense with which defendant was charged. These were merely collateral and immaterial issues introduced into the case by defendant in cross-examination of the witness, and upon them her testimony could not be contradicted. Whart. Crim. Ev. [9 Ed.] sec. 484.
II. Neither was evidence of specific and independent immoral acts admissible for the purpose of impeaching her credibility as a witness ; “only evidence of a general character regarding veracity is allowed for that . purpose, and specific charges cannot be preferred as the
Soon after the alleged act of defilement the father of the girl accused defendant of its commission. Defendant at the time made no direct and positive denial; on the charge being repeated defendant answered: “Drop it, and don’t say any more about it.” We think it entirely legitimate for the prosecuting attorney to criticise this language and conduct in his argument to the jury. When one accused of crime wholly or partially admits the truth of the charge, then both the accusation and the reply are competent evidence. Whart. Crim. Ev., sec. 679, and note; Com. v. Brown, 121 Mass. 69. The answer and conduct of defendant might well have been construed into an admission of the charge, and any. argument legitimately drawn therefrom could with entire propriety have been made to the jury. The objection of misconduct on the part of the attorney for the state, in making such argument, was properly overruled.
These are the points insisted upon by defendant’s .counsel for reversal none of which, we think, were well taken. An examination of the whole record discloses 'no error. Judgment affirmed.