State v. Mitchell

Decision Date30 June 1910
PartiesTHE STATE v. ROY MITCHELL, Appellant
CourtMissouri Supreme Court

Appeal from Dent Circuit Court. -- Hon. L. B. Woodside, Judge.

Affirmed.

C. P Johnson, Dalton & Arthur for appellant.

(1) The defendant was forced by the court to testify to the very thing on which the jury convicted him. It was clearly error to rule that defendant must testify as to whether he ever, at any time, had sexual intercourse with the prosecutrix. A defendant in a criminal prosecution, who testifies in his own behalf, can be cross-examined only upon matters brought out in his examination in chief. R. S. 1899, sec. 2637; U. S Constitution, Fifth Amend. (2) The evidence does not show that defendant seduced the prosecutrix. (a) The testimony of the prosecuting witness is that she let the defendant have sexual intercourse with her because she loved him and because he promised to marry her when he completed a course in college, which would take him four years from the time they entered into the agreement. (b) In the case of State v Reeves, 97 Mo. 668, the court held in substance that if the prosecuting witness submitted herself to the defendant upon the bare promise that he would marry her, the necessary elements of seduction are lacking and the defendant should not be convicted. (c) If the prosecutrix agreed with defendant that he might have sexual intercourse with her, provided he would agree to marry her at some future time, and defendant agreed that he would, and they had sexual intercourse under said promise, there is no seduction. State v. Meals, 184 Mo. 244. (d) The State must show that there was a promise to marry at the time the prosecuting witness consented to have intercourse with defendant. State v. Bassfield, 81 Mo. 151. (e) The sexual intercourse is an essential element of the seduction, and must always be proved beyond a reasonable doubt. It must be procured by an unconditional promise of marriage, and it must be solely because of the promise that the female is induced to surrender her virtue. Underhill on Crim. Ev., sec. 387, note 2; State v. Bassfield, 81 Mo. 151. (3) According to the testimony of the prosecuting witness, she and defendant entered into a contract to marry when defendant completed a course in college, which was understood and agreed, at the time, to take four years from the date she says the contract was made. Under the terms of the contract, as she states them, the defendant has about two years yet in which to complete his contract with the prosecutrix. Legally there should be no criminal prosecution until the breach of the contract is made. 2 Parsons on Contracts (6 Ed.), star p. 60; 2 Bishop, Crim. Law (4 Ed.), sec. 1164; People v. Alger, 1 Parker 333; Wild v. Harris, 7 C. B. 999.

Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.

(1) There was an abundance of evidence to justify the verdict. Of the truth and weight of the evidence the jury were the sole judges. The jury were very lenient with the appellant in their verdict, as the whole case presented an aggravated state of facts tending to establish in the strongest degree the absolute guilt of appellant and also that appellant is devoid of that reputable character which citizenship demands, is a menace to society, and should have been punished to the fullest measure designated in the statute. State v. Cunningham, 154 Mo. 174; State v. Miller, 156 Mo. 76; State v. Avery, 113 Mo. 500; People v. Mullins, 83 Cal. 138; State v. McLaughlin, 149 Mo. 31. (2) The State had a right to ask defendant if he ever promised to marry prosecutrix. This promise of marriage was alluded to in his examination in chief. As defendant availed himself of the privilege of testifying in his own behalf, he could be cross-examined as other witnesses. Such was the ruling in State v. Clinton, 67 Mo. 380; State v. Cox, 67 Mo. 392; State v. Rugun, 68 Mo. 214; and State v. Testerman, 68 Mo. 408. (3) The fourth point in defendant's brief, that the evidence did not show that the appellant seduced the prosecutrix, cites the Reeves case, 97 Mo. 668. In that case the illicit intercourse was held to be a barter and trade for the promise to marry prosecutrix in the future. But in the case at bar, the seduction was an absolute betrayal of the girl by long and continued courtship, after promise of marriage, with and by constant wiles, arts and blandishments practiced upon the loving, confiding, and deceived girl under his false promise. State v Sublett, 191 Mo. 163. The letters introduced in evidence are very affectionate, revealing the estimation in which appellant made prosecutrix believe he held her. Here we have a promise of marriage fully shown by evidence other than that of the prosecutrix, and the seduction shown absolutely.

OPINION

FOX, J.

This cause is now pending before this court upon appeal by the defendant from a judgment of the circuit court of Dent county, Missouri, convicting him of the seduction of a female of good repute under the age of twenty-one years under a promise of marriage.

On the 10th day of August, 1909, the prosecuting attorney of Dent county filed with the clerk of the circuit court of said county, an information charging the defendant with unlawfully and feloniously seducing and debauching Arzetta Inman, an unmarried female of good repute and under the age of twenty-one years, under promise of marriage. At the regular August term, 1909, of the Dent Circuit Court, and on the 16th day of August, the defendant was duly arraigned and entered his plea of not guilty, and on the following day he was put upon his trial in said court before a jury duly impaneled and sworn to try the cause. At said trial the State introduced evidence tending to prove that Arzetta Inman was an unmarried female, whose mother was deceased, and who resided with her father on a farm in Dent county, and that defendant resided a mile and a half from the prosecutrix; that defendant had been waiting upon Miss Inman from January, 1905, as her suitor, until in January 1909; that he was visiting the prosecutrix when not away attending school, most every Sunday, and sometimes at evenings during the week; that he continued waiting upon her constantly during said time, and that they became engaged to be married, and had contracted and agreed to marry each other; that they had been going together at least two years when they decided to marry when defendant arrived at the age of twenty-one years.

Prosecutrix testified that the defendant continually told her that he loved her, and she admits that she loved him; that on July 28, 1908, defendant had intercourse with her, after many times begging, persuading and promising to marry her, as she says, "just persuading me into it;" that he told her they were to be married, and if she loved him well enough to wait for him, after he went to school, he didn't think she ought to care, as they intended to get married.

The prosecutrix testified that the defendant, by the exercise of arts and blandishments, persuaded her to have sexual intercourse with her, and that she cried about having given up to him after she went to bed that night, and told him about it when he came to see her the next time, and he wanted to again have sexual intercourse with her; that she loved defendant and thought he would do the right thing about it, and that he promised to marry her, and she thought he loved her, and that she had never had intercourse with any other man. The prosecutrix testified that defendant objected to her keeping company with any other young men during the full time of the courtship between the prosecutrix and defendant; that the prosecutrix, in the month of March, 1909, in conversation with defendant, asked him to keep his promise to marry her, and he said he didn't know, that he was going to school and that he could not marry the prosecutrix until after his course of four years' study in his school was completed, and advised her to go to a physician; that he could not give her medicine, as he would be subject to a term in the penitentiary if he did, and advised her to go Dr. Craig, a physician; that during the time the prosecutrix and the defendant became engaged defendant wrote the prosecutrix a great many letters, some of them being introduced in evidence; that during the courtship defendant gave prosecutrix two rings, a manicure set, a bracelet and other presents. Upon this bracelet defendant had engraved his initials and those of the prosecutrix; that during said period they were constantly together, the defendant taking the prosecutrix to many places and gatherings, such as to church, picnics and encampments, and other public gatherings of that character in that neighborhood. The prosecutrix went to see Dr. Craig at the instance and request of defendant two or three different times. Defendant stated to prosecutrix many times that he would marry her and would always treat her right before and after he had sexual intercourse with her, and that after fondling and loving her she finally yielded to his solicitations.

Exhibits "A" to "P" inclusive, were letters written by defendant to the prosecutrix and signed with appellant's name. No objections were made to their introduction in evidence, and no exceptions saved thereto.

The State further introduced evidence tending to show that the prosecutrix and defendant were seen together at public places often, and that defendant was known in the neighborhood to be the "solid company" of prosecutrix; that the prosecutrix enjoyed a good reputation in the neighborhood in which she resided, for honesty and integrity, virtue and chastity and good behavior.

The letters introduced in evidence were identified as the...

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