*1 APRIL 1921. TERM, Vol. 288]
State v. Stokes. THE STATE FRANK STOKES, Appellant. Two, 23,
Division June 1921. Interpretation 1. DEFENDANT AS of Statute. dif- WITNESS: It is lay any positive apply ficult to down rule which will in the in- 4036, terpretation (Sec. 1919) declaring R. of the statute that the a criminal case shall he liable cross-examina- defendant to any chief, tion as matter his to referred examination and may impeached any and the he as other contradicted witness in application case. its must in each case he determined Its facts. own .
2. -: Immaterial Matters. The cross-exam- Cross-Examination: concerning ination defendant not of a matters are material which whereby injured in the case and he not issue is not is
reversible error. -: -: Seduction: 3. Movements. defendant had Where tes- alleged promise tified he had at time of mar- that before on.e lying riage young pallet, and man found another a home, absence, parents’ during three in her their o’clock testify afternoon, requiring trial court did not err him to frequently visited and on cross-examination that he thereafter marry she that asked him to her. a --: -: Conviction of Other Crimes. On trial of 4. error, charged it is in view of with seduction not compel language of Section Revised Statutes him testify not when about fourteen or was convicted whether stealing watermelons, years age of he was convicted for fighting. carrying pistol, [Dis- for was convicted Beckner, tinguishing Mo. 281.] duty -: It -: -: Instruction. not 5. they jury the evidence can consider to instruct the crimes, evi- other admitted as conviction former defendant’s witness, only credibility tending affect dence his tending discrediting prove purpose his as' being tried, guilt he is where defendant crime for his of the subject. requests on the nor an instruction neither offers Wrong names Name. indictment which twice INDICTMENT: An Slokes,” “Prank “Prank once as the defendant as Stokes” plea arraigned where Prank Stokes his entered before made no attack the indictment real COURT OP SUPREME during the trial made no introduction of to the ground evidence on there variance between . body name and of “Slokes” once mentioned *2 indictment, alleged and the trial did find the not vari- n prejudicial of anee material to the merits case or to the was the is, (Secs. defense of under the statute 3906 and R. charged 1919), S. sustain a conviction of sufficient to Frank Stokes felony. with a Reopening PRACTICE: 7. Case: Seduction: Proof of Unmarried State. nothing prose- Where there was to indicate that cutrix, seducing the of trial defendant for as*unmarried female marriage, promise married, under mony of had ever been but the testi- impression of all the left witnesses the that she was un- married, permit State, was not it error the after the case was plaintiff begun argument closed and counsel for had to the jury, prove single time the'al- leged seduction that she had never been married. Keeping Company 8. Boys. EVIDENCE: Seduction: With Other It permit was not error in the seduction case to refuse to a witness State, reputation prose- for the who that the testified chastity good, testify cutrix for and virtue was to further whether keeping company boys, he had heard of her mony showing with other the testi- kept company boys prior that she had with other alleged promise marry question to defendant’s her and the referring subsequent asked to that time well as to time. Alleged improper ARGUMENT TO 9. JURY: Not Preserved. remarks by argument jury, made counsel for the his State in objected to, were not were made a matter of record and are transcript, appeal. not contained in the cannot considered be by Wrong panel INDICTMENT: 30. Indorsement Foreman: Name. The grand jurors Moore, name Rufus contained name appears no where else therein. The Moore indictment in- foreman,” Moore, dorsed “R. L. as a true bill. motion No filed, quash sufficiency it was nor its during Held, presumed it thé trial. will be made duty, requires, as the trial court its statute found did person. Moore one Moore and R. L. were same Rufus jurors Signed by Wrong Person. Where the VERDICT: list of 11. who case the name Arthur Paxton tried the contains and the name list, appears appears in the and no evidence Paxton no where else contrary, presumed it will that Arthur to the Paxton and A. A. signed 'person, and that verdict are one Paxton same Paxton, “A. is not defective. A. foreman” 1921. TERM, APRIL Vol. y.
State Stokes. Hickory Appeal H. 'from Circuit Court.—Hon. G. Shin- Judge.
leer, Aeimemed. appellant. Harris A. Dollarhide and JD.
W.
(1)
It
the well settled law that
criminal trial cannot he
in a
cross-examined
mat-
to in
examination in
not referred
chief.
ters
.State
Kyle,
30;
v.
Mó.
Pfeifer,
659;
Stale
v.
63;
v.
Grant,
Hathhorn,
State
Swearengin, 269 Mo.
185;
Drew,
R,
U.
Sec.
S.
Constitution,
S. W.
*3
272
State
Mo.
Amendment;
Bowman,
v.
State v.
500;
5th
271
Art. II. sec.
Goodwin,
73;
Mo.
Constitution of
flagrantly
The
violated and
above rule
Missouri.
ignored
entirely
decisions
overlooked
in
the above
(2)
of the defendant in this
the cross-examination
case.
by
permit-
error*was
committed
Reversible
general
ting
to attack the defendant’s
moral
the State
over the
cross-examination,
his
defendant’s
character
exception,
objection to offenses and conduct
as
upon
credibility
would not bear
his
as
having opened up
not
himself
the defendant
witness,
proof
reputation
by
good
of his
offer of
on the
this issue
improper
involved
of character
cross-ex-
traits
v.
cation. State
(5)
wholly
The evidence
Mo. 52.
fails to make out
enough
It is
that the
a case
seduction.
State show
promise
debauched
a
the female was
under
of mar-
that
riage,
there
but
addition thereto
must be the further
shoving that the woman was deceived and drawn aside
path
gained
from the
her affections
virtue,
and her
polluted by
part
arts and
mind
blandishments
“Every
connection
of the defendant.
illicit
is not se-
duction.” State v.
97 Mo.
Reeves,
675; State v. Mitchell,
(6) The court
544 SUPREME v.
State
Stokes.
Attorney-General,
Barrett,
Jesse
Robert
W.
J. Smith
Attorneys-General,
Assistant
Otto,
W.
for re-
and R-.
spondent.
subjected
(1)
improper
was not
Defendant
cross-examination,
(a)
may
The State
cross-examine
upon any
gone
matter
into in
a defendant
his exami-
in chief. State
Mo.
Mitchell,
nation
v.
229
693; State
Ivey,
737; State v.
213
v.
192 S. W.
Drew,
106.W.
(b)
may
proven by
of other
Conviction
crimes
on cross-examination.
defendant’s evidence
R. S. 1919,
Kelly’s
4036;
sec.
Law
Criminal
and Practice, sec. 375;
Spivey,
v.
181 Mo.
State
110;
State
v. Blitz, 171 Mo.
Mo.
Ilubbard, 223
539;
85;
Brooks,
State v.
State v.
202
(c).
Mo. 117.
An
to the introduction of tes-
timony
no
where
reason
sufficient
is stated will not be
appeal.
reviewed on
v.
State
199
Harris,
Mo. 723; State
Young,
(2)
v.
Mo.
449.
The court did not err in
failing on
own
its
motion to instruct
jury
that the
purpose
evidence of other crimes was admitted for the
discrediting
of defendant as a witness.
State v.
Kilirore, 70
State v. Gatlin, 170 Mo.
Ferguson,
(a)
354; State v.
ques-
fore
name
S.
3906,
indictment.
Sec.
R.
1919;
State v.
Purely
objections
265.
Schricker, 29 Mo.
technical
by our
of this kind are cured
cases
statutes
vari-
of
shall
in the name
the defendant
not
ances
be deemed
grounds
acquittal
for an
unless
court before which
trial is
shall
that such variance is
had,
find
material
prejudicial
the ease
to the merits of
the defense
3907,
191.9;
of
defendant. Sec.
R. S.
State v.
John-
Foley,
607;
v.
Mo.
77;
93 Mo.
State
247
son,
State v.
App.
104
151
Ballard,
634;
Burk,
Mo.
State v.
Mo.
198.
(4)
The evidence
sufficient to sustain the verdict. The
is that there must
a
reiterated rule
be
total failure of
justify
or it must be so
the evidence
weak
passion
conclusion that
verdict
the result of
prejudice.
v.
263 Mo.
Underwood,
State
685; State
Concelia,
424;
-v.
v.
228
Rumfelt,
State
Mo. 443.
(5)
permitting
The court
not commit error in
did
reopened.
reopening
case to be
The
of
the case
introduction,
state for the
of
evidence
a matter with-
in the discretion of the trial
It
court.
is well settled
subject
law
not
that such
course is
to criticism un-
injury
less it
shown that
to the defendant resulted
therefrom.
v.
Long,
Rose,
State
271
26; State v.
Mo.
Mo,
257
211;
Currier,
Mo.
v.
225
Ray,
State
651; State v.
(6)
225 W. 973;
v.
Mo.
Dunn,
There
was sufficient
Long,
corroborative evidence. State v.
Phillips,
State 185; State v.
given
Sublett, 191 Mo. 163. The instruction-
in corro-
proper.
boration was
State v. Wheeler, 108 Mo.
iously an Chloe Durnell, seduce and debauch unmarried years good twenty-one repute, under female of against peace dignity age, State. April waived formal defendant Stokes 20, 1920,
On pleaded guilty, arraignment under the indictment, jury. trial of said cause before entered prosecutrix, Durnell, Chloe sub- following That tends to show the facts: she stance, Hickory County, August Missouri, bom in Flemington in miles had lived four said she north county known defendant, she had life; all Prank remember; first since she could she com- Stokes, August, going *7 1918; in that with him menced defendant away, one-half two and miles and came about to lived times a that week; her about two three she see went parties church with that him; and to while at her in defendant she and en- November, 1918, sister’s gaged were that to be afterwards she defendant married; and parties; church and that continued to attend about one engaged, they defendant after week became had sexual chapel county, in near the said her, intercourse with night; that was father of after defendant her child; intercourse with that he had sexual her times at few places; to visit her other that he continued until Feb- wedding ruary, first set for that the was 1919; December quilts getting things ready, that was her and she 24,1918; making got caught that she clothes, etc.; her before the marry then; not that date, above and did 24th family way; out she she found was December, 1918, marry not December that she did because she could July get ready; gave 11, that on 1919, defendant not her City, try get sent her to Kansas and and rid of $15 baby; defendant a letter that she wrote re- spent City, night, one from where she turn Kansas marry he declined him to her, do; that asked part November, 1918, while latter the chapel, close wanted to intercourse with defendant have her, could not wait until husband, would be her said TERM, 1921. APRIL Vol. Stokes. hugging
they kiss- were had been married; ing defend- time. her before that Over testify permitted not have she that she would ant, yielded intercourse and had to defendant’s entreaties marry promise her. with him had it not been for his in substance, testified, On she. cross-examination, gone before Au- she Prank Stokes that gust, had with never company keeping’ with been 1918; that she had boys, only other one she but Fred before Wise August, going that after commenced with defendant; boy only with; other Wise was the she went 1918, Fred August Stokes, the first of that she went Frank wedding then was first with Fred Wise; they engaged but became November December, set had sexual intercourse with that defendant first 25,1918; 1918, one week after November after her about marry engaged; her to they that defendant asked were bought her a defendant dress December, him; marry they because she then, did not could ready; get out she was a fam- she first found way January ily that she told marriage for their that the second date about it; quit February then about her, that defendant 20, 1919; February went with her that he never 15,1919; more May, talk with defendant near that she until City from Kansas after she returned Miller’s, Marcus *8 baby July, 25, her born, was October that boy. with never had intercourse other that she had dated Mis- 1, exhibit at Humansville, Defendant’s pur- August Stokes, Earl' to addressed souri, present- signed E. porting E. to was S.”, “From to C. prosecutrix, asked if she was wrote to and she ed letter, never wrote the testified she letter. that She handwriting. her not in was it that he was the substance, testified, Miller James knew defendant prosecutrix; that he brother-in-law prosecutrix see about to came latter that Stokes; parties; that church and her took week, once a SUPREME COURT OP MISSOURI, v. Stokes. getting he heard them talk married about and about what they they would do that defendant married; after were they place year said would live on the old a then for they place; gave (witness) would move to his that he prosecutrix hog, and her it a she could let run there told they present until that heard married; was hog; getting the talk about that went to work her she together, quilting, they clothes first etc.; that talked getting about married Christmas, about but she could hot get ready by they put it off time, and until Feb- ruary; that witness and defendant are own cousins.
On cross-examination, witness was practically making any the same as chief. He denied arrangements prosecutrix with at his remain home get agreed give and not married. Denied that he property and some other if mare she would remain with wife. witness and his
On re-examination, witness testified that defendant given prosecutrix money go told him he had some City get baby. to see if she rid of Kansas could substantially Mrs. Dona Miller testified the same did facts as her husband.
Fred Wise that he testified, substance, had known prosecutrix years. about three He was asked if he acquainted general reputation prosecutrix community chastity, being for virtue and a vir- objected tuous and moral woman. Defendant’s counsel question, ground only to the witness was ac- quainted people community with few and the ob- jection was sustained.
Tim Stokes, cousin testified he (He years all his known about life* was 21 together; old); they went to school that she and de- together. gatherings fendant went to He heard defend- say, baby (de- ant did not know whether fendant’s) or not. Witness so that, testified far as prosecutrix’s reputation chastity knew, virtue and community good. in that *9 Yol. APRIL 1921. TERM,
Tim Stokes recalled for further cross-exami- August, nation and 1918, denied that he told defendant prosecutrix. he had had sexual intercourse prosecutrix, Chloe- for further Burnell, was recalled and denied that told Oleeda cross-examination, she Shockley, got in the fall if married she 1918, she ever any get wouldn’t have how as she knew rid children, of them.
The State ten introduced witnesses who testified as good reputation prosecutrix to the chas- virtue, tity, etc. foregoing substantially covered case State’s
in chief.
Fred McCracken testified that in the fall of Ray prosecutrix met Bernard and in the that road; Ber- hugging nard had arm her his around her together. they walking day- were the road down It was light at the time.
Henry McCracken testified, substance, same preceding except rs the witness, that he fixed date prosecutrix Ray walking when Bernard and were to- gether, being in 1919. March, years age,
Cuba fifteen Beem, that testified she prosecutrix niece; was defendant’s she had known years or three and had a conversation with her in two prosecutrix the fall this conversation promised Miller told witness that Jim had if she her, marry, stay would never there and work for himself give that he would her a team wife, of colts and property; accepted some other she had proposition; that this conversation occurred Jim Mil- on November ler’s, lot, cow Shockley years Oleeda testified she nineteen age, known had all her life, say, got fall of 1918 heard if she ever she married, keep wouldn’t children; have she knew how to having from it. them, and tried *10 COURT OP SUPREME y. Stokes.
Earl lie a cousin of that Stokes, testified defendant, went to school with her handwrit- and knew ing that ; he received a letter from as de- her, described quit fendant’s exhibit that he had school, his sis- gave prosecu- ter Mamie it to that he talked him; receiving trix after this wanted and she to know letter, why' chapel he didn’t it or come to the answer as she prosecutrix, had told him. further that Witness testified August September, or 1918, told him she had in- had Ousley, tercourse with Burr Jones, Glenn Tim Stokes and Fred Wise; this occurred on the road from Plemington staying while she was at Mr. Shreck’s.
Defendant’s exhibit 1 was read in evidence, as fol- : lows Aug.
“Humansville, Mo., 8, 1917. “To Stokes: Earl you. hope
“Hello Earl are am how I all K.O. I you you these few lines will find the same. What have doing been this week I have wash iron and went over night to Willie and stade all I and come home and clean up help the house and had I hall Cleae a lode of corn sleep and I went to a while and then went I hack to work again say you get Sunday evening. kid Home rite a all you Monday night pass you How say did a see me Earl up by you your Wenday night I waunt to make mine next you you say if will do what I to do want some one said they you they marry if me wood and I will if you go they away will sad we cod sell out and from they home that wood from us a mont. I want do you you sleep what I told let I I wood wood with me. help put said that Ethel she me in a wood bed her- Wenday night me next self let know if we dont do go give you I am do sumten else come down and I will big hug. kiss and I will this Well send Montie give Montie it to school will to Mama. You ancer by Mama. and send it
“Prom C. E. to E. S.” APRIL TERM, Yol. y. Stokes. in substance
Prank testified Stokes, defendant, twenty-six years he old; as follows: That promised marry he never never Durnell; Chloe presence either had conversation with her regard marriage or about Jim Miller his wife, Ray getting Bernard; that Ber- knew married; prosecutrix stayed DurnelPs Mr. and Mrs. nard and gone Sedalia; that he Ber- while the Durnells sáw pallet prosecutrix lying when on floor nard and ; n they up jumped they he drove that when saw up; said, that?” and Chloe that witness said, “'Who *11 ought quick;” August, that was in “You not come so defendant testified that cross-examination, On he pallet lying -the three o in the them on about ’clock saw they quilt pillows two that and afternoon; had down they doing. he not know what were that did there; Over objection required he defendant’s was counsel, of to the prosecutrix gone testify with that had he before go that he to on occurrence; after this would see her go Sundays once that week; and sometimes sometimes they stay while until three o’clock he would were Sunday Chloe the next that he went to see themselves; lying pallet; that her Bernard after he saw again two her about three back see or he to went go once once that he a-week sometimes would weeks; through that she locked the door week; the middle stay out; let him to until she that she he have and would keep that never talked at Miller’s he there; him would girl; marrying that he never talked to her this about marrying him; talked to that he told but she her, about get that the time she married; last want didn’t her he August, marry him 1919. Over was asked compelled testify objection, his violating the for laws once twice been convicted had when about fourteen he was convicted State; stealing was convicted watermelons; that he years old for pistol, for carrying he was convicted fighting. COURT OF SUPREME v. Stokes. here rested in chief.
.Defendant In rebnt.tal, State called ’William Durnell, who tending* gave Ray evidence show Bernard was army at the time defendant claims to have seen pallet him on the with Chloe. prosecutrix, the mother Durnell,
Louisa defendant’s exhibit 1, shown and stated that it was daughter’s positively handwriting. not in her prosecutrix, Durnell, the brother Wm. testified went with her school and observed her hand- writing. He was shown said exhibit 1, and testified that handwriting prosecutrix. it was not in the plain- After the case closed counsel for the argument, per- tiff commenced the the State was prove over mitted, single during* years that she was and that she 1919; The had never been married. foregoing substantially covers all the testi- mony in the case. reading
After of the instructions and ar- guments jury in the case, the returned into court the following verdict: jury,
“We, find the defendant, Frank Stokes, guilty charged pun the indictment, and assess *12 years penitentiary. ishment at 3 in state
“A. A. Paxton, Foreman.” in,due Defendant, filed time, motions for new trial judgment. in and arrest of Both motions were over- duly appeal ruled, defendant an and sentenced, granted him to this court. Appellant assigns
I. ruling as error the of the permitting in objection, the State, over his respect brought cross-examine him in to matters not out or referred to in his di him, Cross-Examination Defendant. rect examination. language 4036, of Section Revised Statutes alleged violated, is, it that defend APEIL TEEM, Yol. Stokes. any as to mat cross-examination, liable to be “shall
ant, may chief, his examination and ter referred any impeached other as witness in and contradicted be thoroughly familiar with the are above case.” We well authorities statute, as as the cited of our section respective It is in their briefs. difficult counsel apply anjr positive rule which should in the lay down interpretation above as each case section, must largely reference with facts determined stated all the have set out evidence the case We therein. very fully, again only refer to facts and shall far necessary. by appellant that testified, chief, is conceded he It marry promised to Ohloe Dumell; never he presence her, with conversation never had he Miller, Miller or Mrs. Jim in which Jim he of either get get- he would when married and about about talked ting Bay he Ohloe Burnell and saw Ber- married; pallet quilt, pillows lying two with on a at nard August, Burnell, of Will homo while Will his wife were alia fair. the Sed Over Burnell required counsel, of defendant’s he was prosecutrix testify he went with both before pallet on the he saw with the time her Bernard. after objection, that he defendant’s he testified visited Over frequently above occurrence; after Sundays, g'o once in the and sometimes would middle stay week; that he would her un- sometimes of the morning; o’clock in the or three two she til would keep pro- there; him that he never lock door marriage her, posed marry but she asked him to her marry, did not want to etc. told For purposes case, if it be even conceded that proper and other similar was not above cross- yet, we are at a examination, loss to understand how injured thereby. The evidence is undis- *13 prosecutrix puted parties, that he went with to church, light ques- The cross-examination threw no etc. the 554 COURT OP MISSOURI, SUPREME promised prosecutrix tion as to whether defendant marry would her. It did not tend to show that Chloe previous good Durnell was of character. In view of testimony the of the as to what occurred herself between the cross-examination complained any material to issue in case, grounds reversing no affords valid and remand Avery, ing [State v. 113 l. cause. c. Mo. 499; State Feeley, v. 118 l. Lewis, 86; Mo. c. State v. 194 Mo. l. Barrington, 81.] c. v. 315-6; State c. l. prop II. preceding Aside what in from is said opinion are osition, we the trial court com no in mitted error the admission of said cross-exami in view [State nation, of defendant’s proper chief. Drew, v. 213 S. W. l. c. State v. 264 Sherman, Mo. l. c. 381; State Examination. Mitchell, v. 229 Mo. l. c. State v. Mil Avery, l. c. ler, 463-4; 113 Mo. l. c. 498- respect foregoing subject, 9.] rule of law, is forcefully clearly very stated White, C., v. case c. Drew, recent 213 S. W. l. as fol : lows “ Complaint of the action of is made permitting defendant be cross-examined prosecutor, who him whether asked he was at the home axiy prosecuting at witness time in October. The examination his' direct was asked whether improper any prose ever had he had relations cuting entirely proper and it time, witness him as to his to cross-examine whereabouts and about movements the time at which was said to have [State committed offense. Pfeifer, Ivy, 30-32, loc. cit. W. S. W. ” 736.] 733, loc. cit. Leaving question out of consideration the as to the alleged promise marriage, alleged what and as to place have taken when defendant first had in- sexual *14 555 APRIL TERM, Yol. prosecutrix, if hut little conflict, tercourse there is with testimony. any, in chief, their in As defendant testified marriage, promise not asked and was in relation inter- he had sexual as whether on cross-examination just ground no has Durnell, course Chloe give complaint on of the evidence which he did account viewpoint, any from Considered cross-examination. on opinion no that the court committed are of trial we respect of defendant. to the cross-examination error Appellant court erred contends that the trial III. testify compelling as to his former convictions him to hoy, carrying stealing for when a watermelons fighting,
pistol, when he and for by any SUcl1 offer not ÍSSae °Pened UP Cross-ExMnination. reputation proof good as his on the traits of in said character involved cross-examina up Appellant, support contention, tion. of his relies Judge opinion in 194 Beckner, on v. State Gantt’s following. 281 Judge have We no criticism make Gantt’s principles, opinion, upon but it based common-law from said evident briefs of counsel in as cause, well opinion therein, from the attention of (Laws p. to the Act of 1895 court called 1895, 284), known Revised 5439, now as Section Statutes 1919, by passing was the latter considered nor the case. above section reads follows: “Any person has convicted of who been a criminal notwithstanding, competent is, witness; offense but proved may credibility, affect his conviction be by by the his own record either cross-examination, question must answer relevant party .inquiry crqss-examining shall not answer.” concluded opinion are of the the cross-examination We complained provisions authorized of was of above [State Howe, l. c. v. W. cases section. SUPREME. COURT OF v.
State Stokes. cited; State Banks, v. 272 Mo. l. c. Mills, 536; State v. 258 Mo. l. c. 493; Hubbard, Spivey, v. c. Woodward, Mo. l. l. c. 110-1; State l. c. Blitz, 171 Mo. 540-1-2.] Appellant, assignments
IV. under Ms error testimony, regard numbered insists if that, even properly to the former misdemeanors, shown, “then *15 an(^ duty ^ ^ecame ^ie of the court under instruction request the law under and the defendant’s jury jury counsel to instruct to the the effect that the only conviction consider his could those on other offenses tending to discredit his as a as and witness, tending prove guilty him not as for crime which he oh trial.” was then represented
The record indicates that defendant was by attorneys, careful able and who tried the case inwell gave very carefully pre- behalf. court his The full and (cid:127) pared covering all instructions the real issues in the case. defendant no offered instruction respect in foregoing nor matter, does the record show that the requested jury instruct on the above subject. only The misdemeanors referred to were ad- tending evidence credibility mitted affect as They in case. a witness did not relate except controversy to the merits of the as above indi- appellailt cated. If counsel had offered an instruc- in tion relation the above matter and it had been they requested give or if had refused, the court to subject proper request on instruction their might present been there merit refused, be some to their record before but contention, us, on trial court, respect in to the above committed matter, no error of appellant complain. legally can which sufficiency is, challenged, V. The of the indictment ground charges on the it one Frank .n ictmen. “ gi0^es>> debauching seducing^ marriage promise made Durnell, to her Chloe by Frank Stokes. TEEM, APEIL
Yol. which were 3906-7, Sections Eevised Statutes during year follows: in existence read as wrong de- by name.—If “Sec. 3906. Indictment hy wrong he de- name, fendant indicted unless he proceed- pleading, he clare true name before shall be allege against by in the indictment. If ed the name it entered that another true must be name, name is his entry, after such court; the minutes proceedings trial on the indictment shall all other referring against also to the him name, be had manner, name he is the same indicted, consequences respects, if all and with the same by his true name. indicted had been charge proof.— 3907. Variance between “Sec. any felony or misdemeanor, trial of Whenever appear variance between there the state- shall information and the or evidence ment in the indictment proof the Christian or name thereof, sur- offered name and other surname, Christian or both de- name, scription any person whomsoever there- whatsoever, or *16 description or or the name in any or of described, named thing whatsoever therein de- or named or matter ownership any property of or in the named or scribed, shall be variance such deemed therein, described acquittal grounds the of unless for an the trial had shall the shall find that before court such variance material to the merits of the case and of the prejudicial defense defendant.” the including caption aforesaid, The indictment and signature, as follows: reads
IN THE CIECUIT COUET OF HICKOEY 'COUNTY, MISSOUEI, OF “STATE ss HICKOEY, OF COUNTY MISSOUEI,
To November Term, 1919 OF STATE MISSOURI v. FRANK STOKES
“The duly Grand Jurors for the State of Missouri, empaneled, charged summoned, inquire and sworn SUPREME COURT OP n withinand for the body Hickory County, Missouri, of
upon present charge their Prank oaths and day on or about the of 15th November, 1918, Slokes the County Hickory, aforesaid, did said of and State marriage promise made then and there under and un- Stokes, to lawfully Durnell the Prank him, one Chioe said feloniously, her, and the seduce debauch being Durnell she, the said Chioe Durnell, said Chioe good repute, and unmarried female of then there an peace twenty-one years age against the under dignity of the State. N. Simmons,
“C. ’ ‘‘ ’ Attorney. Prosecuting perfectly Taking as a it is whole, indictment the ‘‘ ’’ upon that the word Slokes same, face manifest body'thereof The latter intended for Stokes. in the plea guilty, arraigned of not and entered was real defendant He made no attack in the case. during no trial, made indictment before progress during the trial to the intro ground indictment on under the evidence duction of that of between name a variance there was body of indictment. mentioned “Slokes” alleged trial found the not claimed It is the case or merits of material variance defendant. The prejudicial indictment, to the defense any other instrument, written construed face, on its real was -the clearly Prank Stokes de indicates seducing charged Durnell and being Chioe fendant intended for Stokes. word “Slokes” according character, to our above of the error clerical legal procedure conception thereunder, law and [Section the indictment. to invalidate is not sufficient R. Adkins, Section R. S. *17 958-9; 220 W. Foster, v. State 981; State W. 225 S. Byrd, Mo. l. 6; l. c. v. 278 c. State 210 S. W. Hawkins, v. 432-3, Mo. l. c. Pfeiffer, v. 277 36; State l. c. 213 S. W. Massey, l. c. 274 Mo. v. 925; State W. 209 S. 559 TEEM, APEIL Yol. 195 c. 87, 271 Mo. l. Morehead, v. 541; 204 S. W. State Perrigin, 258 Mo. c. v. 236; l. State 1043; S. W. State v. l. c. Duvenick, Mo. 237 624; 249 Mo. State Griffin, v. Miller, c. v. 494; l. State Keener, 194; State v. Meyers, v. 107; State 84; 156 Mo. l. c. State v. 437.] Estis, 70 Mo. precedents light foregoing and statutes,
In tlie charges opinion Prank indictment are of the that the we having under Durnell seduced Chloe Stokes, promise marriage, etc. Appellant insuffi- evidence was insists that the
YI. a case of make out seduction. cient to extensively heretofore, are stated The facts repeated. are inconsis there some not be While need testimony of the State, and contradictions tencies damaging were while some facts prosecutrix, by yet she did testi terms denied fy Evidence boy no other on cross-examination that province It her. not the ever had intercourse with is pass weight of the this court to evidence, opinion attempted have not so. We are we do evidence the verdict is sustained substantial necessary guilt of defend to establish the facts all Mo. l. c. [State Underwood, v. ant. v. Rumfelt, 250 Mo. l. c.
Concelia, Barrington, 198 Mo. 23.] charged per with error in trial VII. testimony mitting after closed and State, re-open argument commenced, the case PermiYing prosecutrix testify that she caseenmS married. had never been testimony nothing There was to indicate that contrary, had ever married. On the been including witnesses, of all impression left the It that she was unmarried. is manifest re-opening that no harm was done the defendant in purpose. Ray, [State case for the above S. W. l. c. *18 SUPREME COURT OF Stores. , l. Rose, c. State v. n Dun ] c.Mo. l. l. Worton, Mo. c. 533. opinion VIII. We are of that instruction three, ' given by „ court, not obnoxious against by appellant, criticism leveled it properly case. declared law the and that it charged trial court is with error sus IX. The objection question propounded taining an of the state to a T. T. witness testified Quillen. This far that,
the instance of the State as he prosecutrix reputation of in that knew, the Company community chastity good. for virtue was following On cross-examination the occurred: you keeping “Q. Mr. did hear Quillen, of her Now, company boys?” with other question, an
The sustained to this assigned and that is as error. simply The of this witness was cumula-
tive; There were nine other or ten character witnesses Quillen. who testified substance same as There no was counter-evidence of this character offered question, defendant. does not mention date, and undisputed prosecutrix the evidence is went with boys alleged engagement.. other her before It could chastity not an be considered as attack or vir- kept company boys. even if she had with tue, other witness on cross-examination This testified that he did thing prosecutrix keeping company not know a about boys. neigh- He if with other even asked it was was borhood rumor. Even if some individual had told wit- prosecutrix keeping company been ness boys, hearsay testimony other it would have been incompetent. clearly purpose question If the of the was prosecutrix kept company boys to show that with other n after when she November, 1918, claims to have become engaged tending circumstance as a to show engaged she did not consider herself to defendant, the- APRIL TERM, Yol.
question accordingly. There should framed have been resorting hearsay necessity testi- no to such August, mony, undisputed, the evidence when boys. keeping company with other opinion no error that the court committed "Weare *19 question objection sustaining ashed, the as the thereby. injured that defendant was not Appellant that error X. contends was committed permitting special by Mr. trial court Brown, O. O. the improper for the to make counsel State, re argument in the of case, marks the without tomiry11* being rebuked. alleged
It is not
claimed
defendant’s brief that the
objected
remarks
quested
or
the
to,
were
court
re
was
thing
any
If
rebuke counsel.
such
occurred,
it
not
was
matter of
record, is
contained in
made.a
transcript,
.
[Hunicke
and cannot
considered here.
Quarry
City
v. Meramec
Co., 212
345;W.
Forsee v.
S.
Joseph,
Torreyson
of St.
175
577;W.
Rail
S.
v. United
ways,
Harding
246
696;
Railroad,
Mo. l. c.
Harvey,
State v.
Baker,
Murphy,
Mo. l.
c.
Section Revised Statutes 1919 R. 1909), as follows: reads signed prosecut- “Every indictment must be attorney, grand jury ing any and when the return in- SUPREME COURT OF judge dictment into court it, must examine and if neglected the foreman has it indorse ‘a bill,’ true signed prosecuting attorney his name or if the thereto, signed has not the court it, must cause the foreman to prosecuting attorney sign indorse it, as the may require, presence jury.” case contrary,
In the. absence of evidence to the we conclusively presume will the trial did its duty, necessarily found that Rufus Moore and R. person. L. were Moore one and the same by appellant It XII. is contended that the verdict signed by defective, A. because'it foreman, A. Foreman Trial Wrong when Paxton, there was no Jury: Name, panel. perSOn on the jurors the case, list of who tried shown the name of Arthur contains Paxton, there record, person by the of Paxton on name is no other list. *20 contrary, pre- appearing to the evidence it will be No A. Paxton A. that Arthur Paxton were sumed one person. same and the given careful have consideration to We all
XIII. questions properly raised review this case, therein no error which would warrant us in find re- remanding judgment versing ease. below Mozley, accordingly affirmed. White and CC., is concur. opinion foregoing CURIAM: The PER Railey, hereby adopted opinion as the of the court. All G., judges concur.