239 Mo. 475 | Mo. | 1912
— Defendant was convicted on a charge of seducing and debauching, under promise of marriage, one Ruth Bosley, an unmarried female. From a judgment fixing his punishment at three years in the penitentiary, he appeals.
The information contained two counts; in one, defendant is charged with seducing prosecutrix under
According to the evidence of prosecutrix, her entire courtship with defendant was conducted at- the home of her aunt, Mrs. Sarah Call, who resided a few miles from the home óf prosecutrix. She testified that on February 28, 1909, during his second visit to her, defendant proposed marriage; that she accepted, and an hour or so later, he seduced her under said promise. He continuéd his visits for about four weeks, when, upon learning that she was pregnant, his visits ceased. A child was born to her in December, 1909, which she says was the product of her intercourse with defendant.
There was substantial evidence tending to prove that prosecutrix was under eighteen years of age and of good repute when the alleged seduction took place; and there was also substantial evidence indicating that she was unchaste before defendant began keeping company with her.
Defendant was sworn as a witness in his own behalf, and in rebuttal the State introduced evidence tending to prove that his reputation for morality was bad.
Such additional evidence relating to the alleged promise of marriage as will be necessary for a full understanding of the case, will be noted in our opinion.
Defendant seeks a reversal of the judgment on the following grounds:
1. Because the court erred in overruling defendant’s motion to quash the information on the ground that it contained a misjoinder of causes of action.
2. Alleged erroneous instructions on the part of the State.
3. Improper remarks of the prosecuting "attorney.
5. Failure of the court to instruct the jury upon all the issues of law arising in the case.
6. That the verdict of the jury is not founded upon the evidence and the law of the case; but was rendered by reason of the passion, prejudice and sympathy of the jury.
OPINION.
I. The court did not err in refusing to quash the information on account of the alleged misjoinder, for the reason that before the court passed on the motion to quash, the State abandoned the charge of unlawful carnal knowledge and elected to go to trial only on the charge of seduction. The defendant was not prejudiced by the existence in the information of a count which had been abandoned and upon which he was not tried. His conviction of seduction is equivalent to an acquittal of the charge of unlawful carnal knowledge.
II. Numerous alleged remarks of the prosecuting attorney are complained of; one of them being that in his opening statement to the jury he said of the prosecutrix: “She was seduced on February_28, 1909; on December 8, 1909, the child was born.” We fail to see the impropriety of this remark. It merely referred to certain facts which the State expected to prove and which it did attempt to prove. The very object of the prosecuting attorney’s opening statement was to call the attention of the jury to the facts which the State expected to prove and upon which it relied for a conviction.
III. Several other alleged improper remarks of the prosecuting attorney are noted in defendant’s motion for a new trial and urged here, but as said last
IY. It is also alleged that the court prejudiced the minds of the jury against the defendant by addressing his counsel in such language as to indicate that he considered them only competent to practice before justices of the peace. But we are not cited to any case holding that remarks of a scolding nature by a court to attorneys are grounds for reversal. State v. Nelson, 181 Mo. 340; and other cases cited and relied on by defendant, are not in point, because they refer only to improper oral instructions and remarks made by courts directly to juries concerning their duties. It is highly improper for a court to allow a jury to find out on which side of a case its sympathies fall, or that it is personally unfriendly to a litigant or his attorneys, as such conduct might tend to prevent the jury from performing their duties in an impartial manner. Courts should treat all attorneys who have the right to appear before them with courtesy and respect so long as such attorneys be guilty of no contempt or misconduct. However, we do not believe the mere action of the court in criticising the defendant’s attorneys during the progress'of the trial would alone be cause for overturning the verdict, as its remarks did not indicate how it thought the case ought to be decided.
V. Defendant also assails the instructions given on the part of the State; but we find that these instructions when read with the instructions given at
YI. Defendant also complains that the court omitted to instruct on certain issues of law arising in the case; but as we have decided to reverse the judgment, if any instructions were improperly omitted in the former trial they can be given upon a second trial; therefore we will not encumber the opinion with a further discussion of the instructions.
This brings us to the plea of defendant that the verdict of the jury is not based upon the evidence, but is the result of passion and prejudice. It is true that in addition to the trial court’s insulting' remark to defendant’s attorneys, which was not called for by any misconduct on their part at that time, certain other things transpired at the trial tending io prejudice the jury against the defendant. The State, under pretense of rebuttal, introduced one Mabel French, and attempted to prove by her that she had also been seduced by defendant under promise of marriage.
Aft.er introducing the mother of Mabel French and proving that defendant kept company with Mabel before the alleged seduction of the prosecutrix (Ruth Bosley) the State caused Mabel French to be sworn, with the following result:
“Q. "What is your name? A. Mabel French. Q. Miss Mabel French? A. Yes, sir. Q. And has that always been your name? A. Yes, sir. Q. Have you ever been married? A. No, sir. Q. Your child is here, isn’t it? A. Yes, sir. Q'. Do you know Claude Teeter? A. Yes, sir. Q. The defendant here? A. Yes. sir. Q. How old are you, Mabel? A. Eighteen. Q. When? A. Now. Q. Did you ever keep his company? A. Yes, sir.”
The defendant objected to this, as not being rebuttal.
“The Court: Objection overruled.”
To the action of the court in overruling said objection, the defendant excepted.
“Q. Miss French, where do you live? A. About five miles northeast of Jamesport. . . .
“Q. And how close have you lived to Claude Teeter the last four or five years — the defendant? A. Well, a mile and a little over. Q. How long have you known him? A. About five years. Q. Known him intimately? A. Yes, sir. Q-. Are you acquainted with the people and neighbors there where you and he lived? A. Yes, sir. Q. You have talked with the people there? A. Yes, sir. Q. Are you acquainted with the general character of Claude Teeter in the neighborhood in which he resides, for morality? A. Yes, sir. Q. Tell the jury whether it is good or bad? A. It is bad. Q. Noio, I will ash you if prior to the 28th day of February, 1909', and just prior, if he didn’t seduce you under the promise of marriage?”
Upon objection of the defendant, the witness was not permitted to answer the last question; but enough evidence had been elicited from the witness, when accompanied by the physical exhibit of the child, to clearly impress the minds of the jury with the idea that defendant was guilty of another seduction in addition to the one for which he was then on trial. This evidence was highly prejudicial to defendant.
Not only was proof of an independent crime incompetent to impeach defendant or establish his bad reputation, but it placed on him the burden of defending against a crime' not mentioned in the indictment and which under the Constitution and laws he could not then be required to meet. [Constitu
It was inexcusable on the part of the prosecution to violate the well known rule of law that specific acts of lawlessness of which the defendant had not been convicted and which were not in any way connected with the offense for which he was then on trial, were not admissible to impeach him or prove his bad reputation. [State v. Gesell, 124 Mo. 531.]
It appears by what transpired at the trial that the State, being doubtful whether or not the defendant was guilty of the crime mentioned in the information, sought to introduce evidence of another crime of the same character, and if possible, secure a verdict of guilty on the evidence of such other crime.
We cannot lend our indorsement to such a line of procedure. The State has ample machinery for preferring indictments and filing informations against parties who violate its laws, and it should not attempt to convict anyone for a crime until it has preferred against him a proper charge, as required by the Constitution.
It was not within the power of the defendant to exclude the witness Mabel French and her bastard child from the courtroom. ‘ ‘ The sitting of every court shall be public, and every person may freely attend same.” [Sec. 3862, R. S. 1909; Boyd v. Railroad Company, 236 Mo. l. c. 81.]
In this case it is manifest that the State secured the attendance of Mabel French for the deliberate purpose of prejudicing the jury against the defendant by placing before them evidence of another crime alleged to have been committed by defendant and which evidence he was powerless to exclude and which he had no opportunity to rebut.
The evidence of the prosecutrix tends to prove that the defendant seduced her under promise of marriag’e, as charged in the information; but the Leg
This corroboration need not be by a witness or witnesses who heard the promise of marriage, but may be by such conduct of the parties as usually accompanies a contract of marriage, or by statements of the defendant to third parties.
In the case of State v. Eisenhour, 132 Mo. 140, it was held that evidence that defendant had paid prosecutrix weekly visits for a period of two years, during which time she kept company with no other man, was sufficient corroboration of her evidence that her ruin was consummated under promise of marriage.
In the case of State v. Hill, 91 Mo. 426, it was held by this court that defendant having kept company with the prosecutrix for four years before the alleged seduction took place, this protracted courtship itself was sufficient corroboration of the promise of marriage.
In the case of State v. Walker, 232 Mo. 252, the defendant courted the prosecutrix several months, and agreed to marry her. This agreement was broken off by the mutual assent of the parties. The courtship was later renewed and again discontinued. Still later the courtship was renewed and the prosecutrix seduced under a new promise of marriage made during a third period of courtship. In that case we held that the promise of marriage during the first courtship, together with some preparation for the marriage by prosecutrix, furnished sufficient corroboration that
In the case at bar there is no evidence of any preparation for marriage by either defendant or prosecutrix, so that the corroboration rests entirely upon statements alleged to have been made by defendant in the presence of one Sarah Call, the aunt of prosecutrix, at whose home the entire courtship between defendant and prosecutrix was carried on.
The prosecutrix testified that the promise of marriage and seduction took place the second time defendant called upon her. This evidence itself is improb able and unsatisfactory. While it is possible for courtships to proceed at such a break-neck speed, it is certainly very unusual, and the fact that the prosecutrix yielded to defendant on such limited acquaintance, tends more strongly to support the contention of defendant as to her previous unchastity than to corroborate her evidence that a promise of marriage was the means of bring about the alleged seduction.
The defendant placed in evidence three letters written to him by the prosecutrix during the four weeks following the alleged promise of marriage and seduction. These letters were all couched in a very gushing and affectionate tone, but none of them contain any reference to the alleged contract of marriage.
The attempted corroboration of the promise of marriage was as follows:
Defendant called on prosecutrix one day during a rain storm, and Mrs. Call, at whose home the prosecutrix was stopping, told defendant that her little boy had said defendant would go through fire for prosecutrix; whereupon defendant replied that he would, but expected soon to make arrangements so he would not have to. Whether this statement referred to an agreement to marry the prosecutrix then existing or to an engagement he expected thereafter to make, does not appear. If the defendant’s remark referred to some
Mrs. Call, the aunt of prosecutrix, also- testified that on one occasion she told the prosecutrix to do something, and the prosecutrix having refused, the' defendant took hold of her and compelled her to obey her aunt; saying at the time, “I expect you to mind me, and you had just as well learn one time as another. ’ ’
The defendant also told said witness that the little sister of prosecutrix had said she was going to live with him and prosecutrix when they got married.
On another occasion, defendant told Mrs. Call that his mother had written him to court a nice girl and settle down and be a good boy; and that he had replied to his mother informing her that he was courting a nice girl and expected to get married. At the time of making this remark, defendant looked at prosecutrix and smiled.
All these remarks point in a somewhat indefinite way ,to a contract of marriage between defendant and prosecutrix, hut they also sound a good deal like the joking and extravagant talk which often takes place among young people during courtship when no promise of marriage exists. Defendant denied the promise of marriage and the conversations detailed by Mrs. Call.
We would feel strongly inclined to hold that the evidence of Mrs. Call is a sufficient corroboration of the promise of marriage if the statements she details had been made before the alleged seduction; but they were made afterward, and proof that a contract to marry existed at a date subsequent to the alleged seduction does not fully establish the fact that a promise
We might still be justified in holding the corroborative testimony sufficient, were it not for the evidence of prosecutrix that she yielded to defendant when he was yet a comparative stranger.
In this case the evidence of the prosecutrix as to the promise of marriage is of such a nature as to cast doubt upon her veracity; and under such circumstances the corroboration of her evidence as to the pro.mise of marriage should be clear and convincing. Under the particular facts of this case, we must hold that the corroborative evidence was insufficient.
As the case must be retried, we will say that the prosecuting attorney should confine his evidence to the crime charged in the information; and if he desires to convict' the defendant of seducing Mabel French, he should proceed against him for that offense by separate information.
The judgment of the trial court is reversed and the cause remanded.