269 Mo. 194 | Mo. | 1916
Upon an information charging him with having carnal knowledge of an unmarried female of previous chaste character, between the ages of fifteen and eighteen years, defendant was tried in the circuit court of the city of St. Louis, found guilty, and his punishment assessed at a fine of five hundred dollars and six months’ imprisonment in the city jail. Defendant duly appealed. The prosecutrix on May 1, 1914, the date of the alleged offense, was sixteen years, one month and four days old, and resided, with her parents, in the city of St. Louis. About seven p. m. of that day, the defendant, a young man about twenty-one years • old, living with his parents just across the street, asked the prosecutrix to take a walk with him. She had known the defendant about ten years and accepted the invitation. The two proceeded about six blocks from the prosecutrix’s home out into O’Fallon Park and when they reached a dark, grassy place in the park, prosecutrix said that defendant asked to have intercourse with her and that “I refused, but I was forced to.” That the defendant threw her down and had intercourse with her and said that “if anything happened to me, he would get,me out of it.” She testified that this was the first time that she had ever engaged in an act of sexual intercourse. The following February a girl baby was born. On cross-examination, prosecutrix admitted that a short time after this occurred she again had intercourse with the defendant, defendant telling her that if anything happened from the first act he would not get her out of it unless she again submitted to his lust. The mother of prosecutrix testified as to the age of prosecutrix and that her daughter had always been a good girl; had never worked out anywhere, but had assisted about the home, doing household duties. • The mother noticed that the daughter was “getting large” and interrogated the daughter. Shortly after that the mother met the defendant on the street and told him about the situation and the defendant told her he would come over and see them, but that he would not do it while the
Five witnesses testified that, prior to this occurrence, the reputation of prosecutrix for virtue and chastity in that community was good.
The defendant produced as a witness one Mr. Charles Hade, who testified that prior to May 1, 1914, he had had sexual intercourse with the prosecutrix fifteen or eighteen times, but he was not very definite in fixing the place and time of the different occurrences, and on cross-examination admitted that he was related by marriage to the defendant on trial. Two other young men were placed on the stand by the defendant to testify that they each had had sexual intercourse with the prosecutrix, but they were unable to fix the date prior to May 1, 1914. Three police officers testified that they had seen the prosecutrix out late at night on different occasions, and as late as one o’clock a. m. one morning in July, 1914, with a young boy named Uncer. On cross-examination circumstances were brought out to show the existence of a friendly
In rebuttal the prosecutrix testified that she was not out at one a. m., in July, 1914, with the Uncer boy, and her mother testified that the prosecutrix was never out late at night unless some elderly person or her brother or sister were with her. The State then called young Uncer who denied that he was out at one o’clock a. m., with the prosecutrix in July, 1914.
The defendant did not testify in his own behalf.
Each of said points must be ruled against appellant. Prosecutrix testified that defendant told her he “was twenty-one years old. That was sufficient evidence to justify the jury in so finding. As to the second point it is sufficient to say that the sexual act denounced by the above section of the statute constitutes a crime when committed under the conditions detailed in the statute, whether accomplished with or without force, or with or without the consent of the female. [State v. Harney, 168 Mo. 167.]
II. The first paragraph of instruction number one is attacked. Said paragraph reads as follows:
instruction. “If in consideration of all the testimony in the ease, in the light of the court’s instructions, you find and believe from the evidence that at the city ^ gt. Louis and State of Missouri, on or about the first day of May A. D. 1914 or at any time within three years next before the filing of the information herein, the defendant Arthur Volz was then and there a male person over the age of sixteen years, and that he did then and there intentionally, unlawfully*200 and feloniously have carnal knowledge of the body of one . . . and that at the time he had such carnal knowledge of the said . . . she was an unmarried female of previously chaste character between the ages of fifteen and eighteen years, you will find the defendant guilty as charged in the information and assess his punishment at imprisonment in the penitentiary for a term of two years, or by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in the city jail not less than one month nor more than six months or by both such fine and imprisonment; and unless you so find the facts to be, you will find the defendant not guilty.”
Section 4472, supra, before being amended in 1913 (See Laws 1913, p. 218), did fix the minimum age of the male at sixteen years and the maximum punishment at two years in the penitentiary. By said amendment the minimum age of the male was changed to seventeen years and the maximum punishment was changed to five years imprisonment in the penitentiary. Said instruction was therefore erroneous in the matters above indicated, but we do not consider either of said errors to be prejudicial for the following reasons: Concerning the first point the uncontradicted evidence fixed defendant’s age at twenty-one. If there had been an actually contested issue concerning defendant’s age —some evidence fixing it below seventeen — then quite a different situation would be confronted and no doubt the error would be prejudicial. But under the present state of the record it clearly appears that defendant could not have been harmed by the error. Concerning the second point it is sufficient to say that it was the court’s duty under said statute to fix the amount of punishment. [State v. Harney, supra; State v. Reed, 237 Mo. 224.] But even though it had been the province of the jury to assess the punishment, it would be difficult to conceive how defendant could be injured by having the maximum punishment reduced from five to two years.
By the third paragraph of said instruction the court defined the words, “of previously chaste character” to mean that prosecutrix “had never had sexual intercourse with any male person.” Whether or not this would be a proper definition of this phrase in a ease where the question of reformation was involved w.e need not stop to discuss, but we think it clearly appears that the jury could not have been misled by the instructions in this case to believe that they could find defendant guilty of the second recent act of sexual intercourse.
In support of his contention appellant cites ' State v. Schenk, 238 Mo. 429, l. c. 458. We are unable to find anything stated in the opinion in the Schenk case which conflicts with our holding in the case at bar. The instruction in the Schenk case is not copied into the opinion. The opinion states that by it “the jury were instructed in effect that they might convict if they found that the defendant committed either act.” The same can certainly not be said of the instruction in the' ease at bar, and for that reasom what was said in the Schenk case cannot be accepted as an authority in point in the present case.
The term “carnal knowing” instead of the conventional expression “carnal knowledge” is also defined'
The court did not err in refusing to instruct the jury in effect that unehastity could he proven by circumstantial as well as direct evidence — this because there was no evidence of a circumstantial character concerning prosecutrix’s conduct prior to the alleged offense sufficient to warrant an inference of unchastity upon her part.
In the ease of State v. Kelly, 245 Mo. 489, it was held to be error to instruct the jury, in a case of this character, that the law presumes that every woman is of chaste character until the contrary appears. This upon the theory, not that such a presumption did not in fact ordinarily exist, but upon the theory that the chastity of the prosecutrix was, under the statute, a fact to be both charged and proved and that such an instruction would therefore relieve the State of its
The instruction offered in the case at bar was correct as a purely abstract principle of law so far as it has to do with the question of the burden of proof in the case, but yet we do not think the court erred in refusing to give the same, but on the other hand think it very properly refused to so instruct; this because, (1) the jury were clearly told by other instructions that the law presumed defendant’s innocence and that the burden was upon the State to prove defendant’s guilt beyond a reasonable doubt and the fact of previous chaste character was specifically mentioned as one of the facts to be found by the jury before finding a verdict of guilty; (2) the giving of such an instruction on a purely technical phase of the case would have a tendency to mislead the jury into believing that there would likely be a presumption that the prosecutrix was unchaste prior to the alleged offense.
During the closing argument special counsel for the State made the following remarks:
“It was only for the purpose of procuring a marriage between the outraged and defiled little girl and this defendant, that is what I was retained for, and when they wouldn’t do that, I considered it my whole duty to the people of the State of Missouri and to my client to come here and prosecute this man as vigorously as the law would allow and permit me to do. I have children, I have two daughters, gentlemen of the jury, and you have daughters, among the many daughters throughout our land, and this law was passed to protect the public morals, as stated to you by the State’s attorney in his opening statement and we must protect our daughters and we must protect the females of our families.”
A little later in the argument the following occurred: Special Counsel: “You saw the prosecuting witness on the stand. Will you believe her or will you believe Hade? Compare the two. Gentlemen of the jury, Volz [defendant] didn’t go on the witness stand. The defendant didn’t go on the witness stand. Think of it.” The court: “One moment.” Defendant’s Attorney: “He knows better than that. He knows it can’t be referred to and I will lay the foundation now for a new trial and except to it. That is absolutely out of order.” .Special Counsel: “I merely commented on it. I said he didn’t go on the stand.” The Court: “You ought to know and you do know, that there is a rule against referring to that fact.” Special Counsel: “I will withdraw the remark.” Defendant’s Counsel: “He withdraws it after the injury is done and he has got it before the jury!” The Court: “Do not refer to that fact again, directly or indirectly. You are not allowed to do it, and you ought to know that and not put the State in that position.” Special Counsel: “In the heat of the argument I lost control of my better judgment.” The Court: “Counsel has made the statement, and it has been objected to, which he ought not to have made, and for which the court reprimands him, because if he undertakes to prosecute in this court he ought to know something about the rules and practice of the law, and you, the jury, will utterly disregard that statement and let it have no weight with you at all in deciding this case.” Special Counsel: “I desire to apologize. I didn’t mean to do anything improper.”
It is a well known fact that jurors are easily prejudiced in this character of case, and for that reason, as was well said by Brown, P. J., in the case of State v. Horton, 247 Mo. 657, l. c. 666: “Officers should conduct prosecutions of this character with scrupulous fairness and avoid injecting into the minds of the jury any matter which is not proper for their consideration, or which would add to the prejudice which the charge itself has produced in their minds.”
"We are of the opinion that, all the remarks considered, sufficient poison and prejudice was improperly injected' to warrant a reversal of the judgment.
The judgment is reversed and the cause remanded.
The foregoing opinion by Williams, C., is adopted as the opinion of the court.