State v. Baldwin
| Decision Date | 24 November 1908 |
| Citation | 113 S.W. 1123,214 Mo. 290 |
| Parties | THE STATE v. WILLIAM BALDWIN, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Daniel D. Fisher Judge.
Affirmed.
Jones H. Parker and I. Joel Wilson for appellant.
(1) The information is insufficient in that it fails to charge defendant with taking away from her father Florence Hamann. State v. Adams, 179 Mo. 341. (2) It was error to admit, over the objection of defendant, the statement of William Hamann, the father of the prosecuting witness, to the effect that he did not give his consent to his daughter's going away with defendant. This testimony was foreign to the issues and therefore irrelevant, and being admitted error was committed. Sherwood's Com. on Crim. Law, p. 108. Defendant could not be heard to say in defense that he had procured the consent of the father to take away his daughter as the father had no authority to give his consent, in fact should he do so he would himself be guilty of a felony under the statute. And so with the admission of the testimony above referred to the State is permitted to inject into the minds of the jury a poison for which the defendant has no antidote. (3) It was error to give the second instruction submitted to the jury by the court of its own motion. In construing the law governing this class of cases in a number of jurisdictions, including our own, where the statute is silent as to the character or reputation of the prosecutrix for chastity, the courts are almost a unit in holding that chastity should be exacted of the female to bring her within the protection of the law. Kerr v. State (Ind Terr.), 104 S.W. 809; State v. Kelley, 191 Mo. 691; State v. Johnson, 115 Mo. 492; State v. Gibson, 111 Mo. 92; Polk v. State, 40 Ark. 486; Caldwell v. State, 73 Ark. 139; Andre v. State, 5 Iowa 398; Boak v. State, 5 Iowa 430; State v. Higdon, 32 Iowa 262. (4) It was error to submit the third instruction to the jury given by the court of its own motion. When the court gave this instruction and incorporated in it the following: "For any length of time for more than one single act of sexual intercourse," it incorrectly declared the law governing the case. State v. Johnson, 115 Mo. 496; State v. Adams, 179 Mo. 343; State v. Rorebeck, 158 Mo. 130; State v. Bobbst, 131 Mo. 338. The gravamen of the offense is the intent defendant had at the time he took the prosecutrix away from her father, what he did subsequent to the taking could only be shown for the purpose of establishing the object or intent he had in mind at the time of the taking. State v. Adams, 179 Mo. 343; State v. Rorebeck, 158 Mo. 130; State v. Johnson, 115 Mo. 496; State v. Bobbst, 131 Mo. 338. This instruction is misleading and confusing. It conveys the impression that if defendant took Florence Hamann away from her father, and indulged in more than one act of sexual intercourse with her, he would be guilty of the charge in the information. (5) The giving of the fourth instruction by the court of its own motion, was error. The statute upon which this prosecution is bottomed does not prohibit the taking away of a female under the age of eighteen years from her father for the purpose of having sexual intercourse with her. State v. Gibson, 111 Mo. 98; State v. Rorebeck, 158 Mo. 130; State v. Bobbst, 131 Mo. 338; State v. Johnson, 115 Mo. 496. An instruction which authorizes the jury to return a verdict of guilty against a defendant charged with "taking away a female under the age of eighteen from her father for the purpose of concubinage," if they believe and find from the evidence that he took her away for the purpose of having sexual intercourse with him, misdirects them as to the law in the case. The court, in effect, in this instruction, tells the jury that in order to find defendant guilty the only fact necessary to be proved is that he took her away from her father with the intention of having sexual intercourse with her. (6) The court committed error in refusing to give the following instruction which was offered by defendant: "The court instructs the jury that if you believe that defendant took the prosecutrix away from her father for the purpose of having sexual intercourse with her merely, you will find the defendant not guilty." This instruction correctly declares the law and should have been given. State v. Gibson, 111 Mo. 98; State v. Adams, 179 Mo. 343; State v. Rorebeck, 158 Mo. 130; State v. Bobbst, 131 Mo. 338; State v. Johnson, 115 Mo. 496. (7) The motion in arrest of judgment should have been sustained. No valid judgment could be rendered upon the verdict. It did not respond to the whole information or charge. State v. Harmon, 106 Mo. 635; State v. Manicke, 139 Mo. 548; State v. Austin, 113 Mo. 538; State v. Moore, 121 Mo. 514; Beems v. Beekman, 3 Wend. 667; 3 Graham & Waterman on New Trials, p. 1378; State v. Pierce, 136 Mo. 40; State v. Modlin, 197 Mo. 379; State v. DeWitt, 186 Mo. 61; State v. Cronin, 189 Mo. 670.
Herbert S. Hadley, Attorney-General, and F. G. Ferris, Assistant Attorney-General, for the State.
(1) (a) The information charges the offense of taking away a female for purpose of concubinage in form approved by this court. State v. Johnson, 115 Mo. 486; State v. Jones, 191 Mo. 655. (b) The information sets forth the prior conviction of rape with sufficient particularity. Joyce on Indictments, sec. 367. (2) It is not necessary that the taking away should have been accompanied by actual cohabitation. State v. Knost, 207 Mo. 22; State v. Beverly, 201 Mo. 550; 4 Elliott on Evidence, sec. 2744. (3) It is no defense that the prosecutrix consented to go away with defendant, or consented to have sexual intercourse with him. State v. Bobbst, 131 Mo. 338; State v. Jones, 191 Mo. 660; Clark & Marshall on The Law of Crimes, p. 306. (4) It is immaterial whether the girl was previously chaste. State v. Johnson, 115 Mo. 491; State v. Bobbst, 131 Mo. 336. (5) The evidence was sufficient to support the verdict of the jury. State v. Beverly, 201 Mo. 550; Bishop on Statutory Crimes, sec. 637; 4 Elliott on Evidence, p. 50. (6) No error was committed by the trial court in giving instructions. State v. Adams, 179 Mo. 338; State v. Jones, 191 Mo. 653. (7) (a) Defendant's refused instruction was properly refused. It does not properly declare the law. State v. Bobbst, 131 Mo. 338. (b) The instructions given by the court presented the case in all its features fairly to the jury, and it was not error to refuse the instruction asked by defendant. State v. Barrington, 198 Mo. 106. (8) Defendant's former conviction of crime was properly proved by the records of the trial court. Carp v. Insurance Co., 203 Mo. 295.
This is an appeal from a judgment of conviction against the defendant in the circuit court of the city of St. Louis. On the 15th day of July, 1907, the assistant circuit attorney of the city of St. Louis filed an information, duly verified, in the circuit court of said city, charging the defendant, first, with having served a term in the penitentiary for the offense of rape, and then proceeded to make the charge of taking one Florence Hamann, a female under the age of eighteen years, from her father, having charge of her person, for the purpose of concubinage. August 19, 1907, the defendant was duly arraigned upon the information and entered his plea of not guilty. The cause was then continued to the October term of said court, and on the 9th day of October, 1907, the defendant was put upon his trial. The evidence upon the part of the State developed at the trial tended to prove substantially the following state of facts:
On the 21st day of May, 1907, Florence Hamann, a girl in short dresses, fifteen years of age, was residing at 207 Douchouquette street, in the city of St. Louis, with her father, William Hamann, who had legal charge of her person. On the morning of said day, the girl Florence left her father's home in search of employment. On Chouteau avenue, in said city, while in company with two other girls casual acquaintances, Lillie Schafenberg and Finnie Dishbing, she met defendant, a stranger to her and to her companions. Defendant, under pretext that he could secure a position in a telephone office for her, induced Florence to go with him. He took her to a room in the Clover Leaf Hotel in said city. Arriving in the room, Florence screamed, but defendant threatened her and put a bed against the door. He kept her in the room about two hours, during which time he had sexual intercourse with her. After leaving the Clover Leaf Hotel, defendant kept Florence in his company throughout the day. In the afternoon he secured a room for himself "and wife" at the boarding house of Mrs. Beamer, 715 South Broadway in said city, and he borrowed a bucket from Mrs. Beamer for coffee. Defendant and Florence spent the night together in said room, having sexual intercourse several times during the night. Mrs. Beamer did not know that the girl was with defendant in the room until next day. Defendant, upon his lawful relation to Florence being challenged that day by Mrs. Beamer, first asserted that the girl was his wife, and admitted that he had slept with her the preceding night. Later he admitted that...
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