State v. Smith

250 Mo. 274 | Mo. | 1913

ROY, C.

Defendant was convicted of an assault with intent to rape Gladys Penny, a female child under the age of fourteen years, and was sentenced to two years in the penitentiary.

The prosecuting witness testified that she was at Cold Springs in March or April, 1910, when she was about eleven years old. She lived near that place. She went there horseback for groceries. That defendant was there and left a few minutes before she did; he was walking; she caught up with him. lie began fondling her. She tried to get away and they passed beyond where he should have turned off to go home. When they got to the old.Nawl place, he pulled her off the horse, and tried to throw her down. A man came along and he let her go. After the man passed, defendant continued his attempts to induce her to yield. He let her go upon her .promising to yield to him the next time they met. He threatened to kill her if she ever told. She did not tell her mother or any one for about a year.

The defendant testified in his own behalf, denying the charge. He admitted that he was always fond of playing with children. The defendant then put J. D. Woods on the stand, who testified to defendant’s good moral character. On cross-examination, he testified that he had heard talk of several similar attempts by defendant against girls and women. The defendant objected to the admission of that evidence.

In rebuttal, Kate Ashinhurst testified for the State that in 1902, when she was twelve years old, the defendant was hauling cane to her father’s mill, and that she was sent home with him in his wagon for some butter, and that during the trip to his house, in a hollow, he stopped the wagon and tried to induce her to submit to him. She tried to leave the wagon. He continued to fondle her in a lascivious way until she made him quit.

To that evidence the defendant objected on the ground that it showed another offense, and that defendant’s character could not be impeached by specific acts.

The Court instructed the jury as to an attempt to forcibly rape without requiring them to find that the child was under fourteen years of age. It is admitted in appellant’s brief that she was ten or eleven years old when the alleged offense occurred.

Cross-Examination of Character Witness: Similar Acts. I. It was proper on cross-examination of the defendant’s character witness to require him to state whether he had heard talk to the effect that defendant had been involved in simr ilar trouble with other girls. This question was fully discussed in State v. Parker, 172 Mo. l. c. 206-207, and such evidence was held proper on cross-examination, also in State v. McLaughlin, 149 Mo. l. c. 33, and State v. Beckner, 194 Mo. l. c. 298.

Evidence of Another Similar Offense not Competent. II. The evidence of Kate Ashinhurst, a witness for the State, that the defendant had made a similar attempt against her, was incompetent and constitutes reversible error, as was held in State v. Teeter, 239 Mo. l. c. 485; State v. Phillips, 233 Mo. l. c. 305; State v. Lockett, 168 Mo. 481.

The defendant was charged with one crime, he was confronted with evidence of two offenses, and the jury was instructed as to an offense different from the one charged.

The judgment is reversed, and the cause remanded.

Williams, C., concurs.

PER CURIAM. — The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All the judges concur.