State v. Reeves
| Decision Date | 04 February 1889 |
| Parties | The State v. Reeves, Appellant |
| Court | Missouri Supreme Court |
Appeal from Callaway Circuit Court. -- Hon. G. H. Burckhartt, Judge.
Reversed and remanded.
Crews & Thurmond and I. W. Boulware for appellant.
(1) The defendant was tried without arraignment or plea. There being no plea, there was no issue. A plea is indispensable. A verdict rendered in the absence of any such plea cannot stand. People v. Heller, 2 Utah, 133; State v Agee, 68 Mo. 264; State v. West, 84 Mo. 440; State v. Montgomery, 63 Mo. 296; State v Barnett, 63 Mo. 300; State v. Barnes, 59 Mo 154. (2) Under our practice in criminal cases, motions to quash and demurrers are without distinction. A plea of not guilty and a motion to quash are inconsistent and cannot stand together. State v. Bishop, 22 Mo.App. 435; State v. Montgomery, 63 Mo. 296; Stephen's Pleadings, (9 Am. Ed.) 278; Chase v. State, 46 Miss. 683; 2 Hale P. C., 255; Heard's Crim. Plead., 277; Hawk. P. C., chap. 31. (3) If defendant could be punished under the law by imprisonment in the county jail, or by fine or forfeiture, then this offense was not a "felony." R. S. sec. 1676. If the offense is not a "felony," then prosecution must be begun in one year. A "felony" as defined and construed by the statute (sec. 1676) "is any offense for which the offender, on conviction, shall be liable by law to be punished with death or imprisonment in the penitentiary and no other." (4) The evidence is wholly insufficient to warrant, authorize or support the verdict. People v. Clark, 33 Mich. 112; State v. Hill, 91 Mo. 423-9; State v. Wheeler, 94 Mo. 252; State v. Patterson, 88 Mo. 88. The woman who, in consideration of a promise of marriage, is debauched is not seduced. 48 Ga. 664; State v. Carter, 93 Mo. 242; State v. Bergdorf, 53 Mo. 65. (5) The court should have instructed the jury what circumstances and facts were necessary to be proven in corroboration of prosecutrix's testimony, to establish a promise of marriage. R. S. 1879, sec. 1912; 1 Greenl. Ev., (6 Ed.) p. 332, sec. 257; U. S. v. Wood, 14 Peters, 440; State v. Heed, 57 Mo. 252; State v. Hill, 91 Mo. 423-429; 11 Jurist. 830; Roscoe Crim. Ev. (7 Ed.) 834.
B. G. Boone, Attorney General, for the State.
(1) Appellant was properly arraigned. A re-arraignment after the overruling of his motion to quash, without the withdrawal of the plea of not guilty, did not necessitate a re-arraignment. State v. Sunday, 14 Mo. 417; Arch Crim. Pl. 113. The motion to quash was unseasonably filed. Such pleas, if made at all, should be before the general plea of not guilty. 1 Bish. Cr. Proc. (7 Ed.) sec. 762. This court has never favored motions to quash. The sufficiency of an indictment may be fairly tested by a demurrer or motion in arrest, and a defendant should generally be left to these pleas. State v. Rector, 11 Mo. 28; State v. Conrad, 21 Mo. 271; State v. Bohannon, 21 Mo. 491. In a recent case this court has said that the sufficiency of an indictment for a felony is properly tested by a demurrer or motion in arrest, and not by motion to quash; that a trial court does not err in refusing to permit the plea of not guilty to be withdrawn that a motion to quash may be filed. State v. Lichliter, 95 Mo. 405. (2) Under the statute defining a felony, sec. 1676, R. S., any offense is a felony which shall be liable to be punished by imprisonment in the penitentiary. State v. Weldon, 70 Mo. 574; State v. Green, 66 Mo. 632-647; State v. Johnston, 7 Mo. 183; State v. Ingram, 7 Mo. 293. The offense with which defendant was charged was a felony (R. S. sec. 1259), and there is no merit in the complaint that it was barred by the statute of limitations. R. S. sec. 1705. (3) The question asked the prosecuting witness, as to whether she ever thought of defendant's having promised to marry her and of prosecuting him until she heard he was married to another, was properly excluded. It was immaterial, and constituted no defense to the charge; witnesses are not permitted to give their thoughts or conclusions, but to state facts. 1 Greenl. Ev. sec. 440. (4) It was not sought or attempted to be shown on the trial that defendant was a married man at the time of the seduction.
Indicted for the seducing and debauching, under the promise of marriage, Zerelda Hall, the defendant, put upon his trial, was found guilty, his punishment assessed at three years in the penitentiary; judgment and sentence accordingly, and he appeals to this court. For the reversal of the judgment, numerous grounds are assigned, which are to be passed upon in this opinion.
I. The motion to quash the indictment, though filed with the consent of the court, and after a plea of not guilty entered, but not withdrawn, did not have the effect of withdrawing that plea. A motion to quash is in the nature of a demurrer; it certainly occupies no higher plane; and at common law, a defendant in a prosecution for a felony might, at one and the same time, enter his plea of not guilty to the indictment and his demurrer to the sufficiency thereof, and upon the indictment being held sufficient in law, he would be triable on his pending plea of not guilty, just as if no demurrer had been interposed. And the like was true of a plea in bar or in abatement interposed at the same time with a plea of not guilty. 1 Chit. Cr. Law 435, 440; 2 Hawk. 23, sec. 1281, ch. 3, sec. 6, and cas. cit. But though this was true in cases of felonies the rule did not cover misdemeanors. Ib. This explains the view taken in State v. Copeland, 2 Swan 626, and Hill v. State, 2 Yerg. 248, where the offenses charged were only misdemeanors. These considerations rule the point raised against the defendant, and an eminent text-writer regards the doctrine here announced as the better one, holding as he does that a motion to quash is in order at any time down to the rendition of the verdict, and this without any withdrawal of pleas. 1 Bishop Cr. Proc. sec. 762.
II. The crime charged in the indictment was, under the provisions of section 1259, R. S., a felony, because punishable by imprisonment in the penitentiary, and the fact that it might be punished by a lighter punishment does not rob it of its felonious attributes. This is well settled. R. S. sec. 1676; Johnston v. State, 7 Mo. 183; Ingram v. State, 7 Mo. 293; State v. Green, 66 Mo. 631. For these reasons the statute of limitations, section 1705, R. S., invoked by defendant does not apply here, and the prosecution was begun in time.
III. By our statute, it is made a crime for any person, "under promise of marriage," to "seduce and debauch any unmarried female of good repute," etc. R. S. sec. 1259. And section 1912, Revised Statutes, provides that in trials for this crime, the evidence of the woman, "as to such promise, must be corroborated to the same extent required of the principal witness in perjury." The statutes of no other state have such stringent provisions in regard to the quantum of evidence necessary to convict of the crime of seduction. Thus it will readily be seen that decisions of other states authorizing convictions for that offense possess but little worth in determining how to apply such a rigid statute as ours. Resort must therefore be had to decisions and authorities respecting the crime of perjury, and no corroboration falling short of that necessary to prove that offense will suffice in prosecutions like the present one; for so the law is written.
And, though the strictness of the rule requiring two witnesses in order to convict of perjury has long since been relaxed, yet it is now uniformly held that the evidence offered in corroboration of the accusing witness must at least be strongly corroborative of such witness, and something more than sufficient to overcome the oath of the prisoner and the legal presumption of his innocence. Parker, C. J., in Queen v. Muscot, 10 Mod. 192, quaintly and tersely expresses the rule by saying: "Therefore, to convict a man of perjury, a probable, a credible witness is not enough; but it must be a strong and clear evidence, and more numerous than the evidence given for the defendant." See also, State v. Heed, 57 Mo. 252; 1 Greenlf. Ev. (14 Ed.) sec. 256, and cas. cit.; 2 Whart. Crim. Law, sec. 1319, and cas. cit.
Wharton, speaking of the offense of perjury, says: "The preponderance of contradictory proof must go to some one particular false statement." Whart. Crim. Evid., sec. 387, and cas. cit. In Iowa the statute respecting the criminal offense of seduction declares that "the defendant cannot be convicted upon the testimony of the person injured unless she be corroborated by other evidence tending to connect the defendant with the commission of the offense." In Minnesota, the language of the statute is, "but no conviction shall be had under the provisions of this section on the testimony of the female seduced, unsupported by other evidence."
The statute of New York is like that of Minnesota, and under that statute it has been ruled in the last mentioned state that the prosecutrix may be supported by "proof of circumstances which usually attend an engagement of marriage." Armstrong v. People, 70 N.Y. 38. Similar rulings have been made in the other states, the statutes of which have been quoted; but it is too plain for argument that to give such a construction to our own statute on the subject would be contrary to its letter and at war with its obvious meaning. And, in respect to its meaning, it must be presumed to mean just what it says. R. S. sec. 3126.
These remarks are prefatory to the consideration of the second instruction given at the instance of the state as follows:
"The jury...
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