263 Mo. 304 | Mo. | 1915
Defendant was by a jury convicted of carnally knowing Katie Marks who was between the ages of fourteen and eighteen years. His punishment was assessed at a fine of $300 and six months in the county jail.
Corrie L. Arthur, Prosecuting Attorney, within and for the county of Phelps and State, of Missouri, upon the affidavit of Katie Marks, herewith filed, now here informs the court that on or about the-day of April, 1913, at and in the county of Phelps, and the State of Missouri, one Phillip A. Salts, a male person over the age of sixteen years, late, of the county of Phelps, did then and there unlawfully and feloniously have carnal knowledge of one Katie Marks, an unmarried female of previously chaste character, between the ages of fourteen and eighteen years of age; against the peace and dignity of the State. Corrie L. Arthur.
Corrie L. Arthur, Prosecuting Attorney, as aforesaid, first being duly sworn upon his oath says that the facts contained in the above and foregoing information are true, according to his best knowledge, information and belief.
Corrie L. Arthur.
Sworn to and subscribed before me this 27 day of August, 1913.
(Seal) Wax R. Ellis, Circuit Clerk.
Defendant moved to quash the information for the following reasons:
“Because the information shows upon its face that the same is not filed, upon the official oath of the prosecuting attorney of Phelps county or any other officer or body authorized to prefer and make such information.
“Because the averments of said information are insufficient in law to constitute any offense against the laws of the State of Missouri.”
At the September term, 1913, the cause was continued on the application of defendant in order to give the defendant time to get public records in the States of Kansas and Nebraska, for the purpose of proving that Katie Marks was over eighteen years of age at the time of the alleged offense.
At the December term, on December 8, the defendant again made application for a continuance on account of the absence of certain witnesses who would testify as follows; Wm. Smith and John Pope would
The latter application for continuance was overruled on the same day. Two days thereafter, on December 10th, the case was called for trial. Both parties answered ready. The defendant made no further objections to proceeding with the trial.
The prosecutrix testified that she was born in Nebraska, March 4, 1896, and lived there five years, then in Oklahoma five years, then in Kansas five years. She moved with her parents to Rolla in February, 1912. Her mother corroborated her as to her age.
Stephen Marks, Katie’s father, conducted a restaurant, and defendant was the proprietor of a secondhand furniture store. In October, 1912, defendant was employed in the Marks restaurant. About March 1, 1913, Marks and defendant both moved to St. James. Marks ran a restaurant, and was half owner of a second-hand furniture store managed by defendant, who owned the other half. Katie worked sometimes in the restaurant and sometimes in the furniture store. She testified that defendant began making improper advances to her before they left Rolla and that near the first of March, 1913, he had sexual intercourse with her, and that she had never had such connection with any other man.
About July 22, 1913, the parents of Katie discovered the relations existing between Katie and the defendant. There was a rupture of their business relations. Marks sold his interest in the furniture store to the defendant. Katie left St. James secretly, on August 1, in company with Yiola Conlin, and went to
“They have got watches out for 100 miles and it would go hard with all three of us if they catch you and Viola. They are cussing us and telling all over St. James and Rolla they seen us at the very act. . . . For Gods sake Katie be careful and don’t get ruined, and I will see to it, you shall not want as long as I can work or have a dollar. Don’t worry about your folks as they have branded you as a lying hore and that old Mrs. TIicks is telling you and Kilgore done just as he pleased with you, but I know it is a black lie, but dear be careful. I will send you $2 and then when you answer this, I will send you more, as I can hardly make out the name.”
“They told Mrs. Salts I was a bad man, and you was a hore, and they caught us in the act. Mrs. Hicks and Bill Kilgore is talking. Bill says you told him he-could do just as he pleased with you, if he would go back on Julia Hicks, and be your fellow, but my dear pet don’t think for a minute I will believe anything they say about you sweetheart. I would give 500 to kiss your lips just now. They say they will spend every cent to brake me up, but if they do, I can make more. Don’t worry, and I will send you money to hold you up. But you had better stay where you are for a while at least. ’ ’
Harvey Paver testified that he lived just across the street from the Marks home for six months. Didn’t know much about Katie’s reputation, but said it was good as far as he knew.
At one time Julia Hicks lived just across the street from the Marks family at the home of George Starr. Julia Hicks, it is conceded by both sides, had a bad reputation. She left Starr’s home and rented a room in the Marks home, where she lived for several months. She testified that on one occasion in summer she in the company of Will Kilgore, and Katie with Harry Kilgore, went out to the cemetery, and that witness and Will Kilgore sat on the sidewalk while Katie and Harry went into the cemetery and were gone about an hour, getting back after dark. It was common for people to walk in the cemetery. This witness testified that at one time in her room she saw Katie and Will Kilgore lying on the bed, he with one hand under her head and with one arm around her. Witness left the room a few minutes. When she returned Katie was sitting up and Will was lying on the bed. Witness noticed nothing out of the way except as stated.
There was a revival meeting at the courthouse in August, 1912. Mary Medlock testified that she heard loud talking about two o ’clock at night in front of the Marks home. She saw two girls there. One looked like Katie. There were three or four men. Asked as to Katie’s reputation for chastity, she testified:
George Starr -testified that Katie wanted him to meet her at the bridge and he declined. He also testified that she struck herself on the hip and asked him, ‘ ‘ How do you like that ? ’ ’ and that he told her that he had a pair of his ’own. This witness, when asked what men he had ever seen with Katie, said “Bill Smith,” and when the names of other men were mentioned, he stated that he had never seen any of them with her. He did testify that one night between eleven and twelve he saw Katie and Julia Hicks on Salem avenue with two men.
William Roach, who gave his occupation as “working around here at first one thing and another,” testified that Katie’s reputation was bad. On his cross-examination the following occurred: “I heard Billy Sherman talking about her. Q. What did he say about her? A. He was talking about her being up to the Grant House. Q. What did he say about it? A. He was talking about doing business with her and she was sitting on the table and some one running in and catching them and she threw water on them.”
Eli Day testified-that he invited Katie to take a walk, and that she said, ‘ ‘ If you have a dollar, we can go down in the basement;” that they went into the basement, and he got “what she had and I wanted;” that he gave her a dollar. He refused to say what he got. When asked by the court whether his answer would incriminate him, he said that it would not. But he steadfastly refused to say what he got for the dollar.
Defendant offered in evidence the affidavit of Stephen Marks, father of prosecutrix, made on August
The father of Katie Marks did not testify, and neither did the defendant.
In the evidence as given at the trial there is no mention of John Pope who was named in the defendant’s application for a continuance. That evidence does not show any suspicious conduct between Katie and Will Smith.
Gertrude Cooper testified that Katie Marks told her that she (Katie) was eighteen years old March 4 1912.
Defendant did not put in evidence any records to prove the age of prosecutrix.
Prosecutrix denied that she walked in the cemetery with Harry Kilgore, or that she was on the bed with Will Kilgore, or .that she was in the basement with Eli Day: She testified that she did not know Day. She denied seriatim the items of misconduct mentioned by defendant’s witnesses. Defendant’s witnesses who speak on that subject agree that Katie did not “keep company” with any man but Will Smith.
In the Good case it was said (l. c. 130) that it was not to be forgotten that the defendant had been granted a continuance at a former term of the court.
In State v. Temple, 194 Mo. l. c. 252, the court examined the evidence as set out in the application in connection with the evidence given at the trial to determine the question whether there was a probability that the evidence of the absent witness would have affected the result. In that case stress was laid on the fact that defendant’s counsel made no attempt to show at the trial by cross-examination of the State’s witness that the absent witness was present at the difficulty as alleged in the application.
The evidence as to the previous chaste character of Katie Marks was not very strong, but it is to be considered that she had lived only a short time in Eolia and St. James. The evidence against her character was evidently discredited by the jury. It appears to us to be very inconsistent, contradictory and improbable.
John Pope, who was named in the application as a witness who would testify to his having sexual intercourse with the prosecutrix, is not mentioned in the evidence as given at the trial. Gertrude Cooper appeared and testified that Katie had said she was over eighteen. The application does not state that Will Kilgore would testify that he had sexual intercourse
IV. The trial court properly excluded the affidavit of Stephen Marks offered by defendant. That proposition is too plain for serious discussion.
No point is made on the instructions and we find no fault in them.
The judgment is affirmed.
The foregoing opinion of Rot, C., is adopted as the opinion of the court.