State v. Terry
| Decision Date | 12 October 1891 |
| Citation | 106 Mo. 209,17 S.W. 288 |
| Court | Missouri Supreme Court |
| Parties | STATE v. TERRY. |
1. Under Rev. St. Mo. 1879, § 1260, which provides that if the guardian of any female under the age of eighteen years, or any other person to whose care or protection any such female shall have been confided, shall defile her by carnally knowing her "while she remains in his care, custody or employment," he shall be punished, etc., an indictment charging that defendant committed the offense against a female under 18 years of age, she "there and then being in the care, custody, and employment" of defendant, sufficiently alleges that the crime was committed "while she remained in his care, custody, or employment." State v. Buster, (Mo. Sup.) 2 S. W. Rep. 834, distinguished.
2. Mere employment of the female as a domestic servant in the family of defendant constitutes a confiding to his care and protection, within the statute.
3. It is immaterial whether the contract of employment be made by the girl herself, or by her parents or guardian.
4. Five years prior to the alleged defilement the girl was left to work at defendant's house by her mother, but nothing was said about wages. The girl worked for defendant at different periods during the five years. A few months prior to her defilement, she made a contract to work for a fixed consideration. Held, that a charge authorizing a conviction on the theory that there was a continuing relation of confidence by virtue of what the mother did five years before was harmless error, it being clearly proved that at the time of the defilement the girl was in defendant's employ.
5. Where defendant's wife testified that the girl, before leaving their house, admitted that she had had intercourse with another man, a letter written by the wife to the girl after she left, expressing the most cordial feelings towards the girl, was admissible to discredit the wife's evidence; and the fact that it might have tended to show the intimate relations between the girl and defendant's family could not have injured him, if considered by the jury for that purpose, since it was proved, and admitted by defendant, that the girl was confided to his care, within the meaning of the statute.
Appeal from circuit court, Sullivan county; G. D. BURGESS, Judge.
Indictment of Terry for defiling a female under 18 years of age confided to his care. Verdict of guilty. Defendant appeals. Affirmed.
A. E. Eubanks and A. W. Mullens, for appellant. The Attorney General, for the State.
The defendant was sentenced to imprisonment in the penitentiary for two years by the circuit court of Sullivan county for defiling a female under 18 years of age confided to his care.
1. The indictment, omitting the caption, is as follows: "The grand jurors of the state of Missouri, for the body of Sullivan county, upon their oath present: That Philo F Terry, on or about the 20th day of July, 1888, at Sullivan county, aforesaid, being a person to whose care and protection one Celia A. Steele was then and there confided, feloniously did defile her, the said Celia F. Steele, by then and there feloniously and carnally knowing her; she, the said Celia A. Steele, then and there being a female under the age of eighteen years, to-wit, of the age of seventeen years, and there and then being in the care, custody, and employment of the said Philo F. Terry, — against the peace and dignity of the state." It is urged that this indictment is fatally defective in not directly averring that Celia A. Steele was confided to defendant's care, that she was under 18 years of age, and that she remained in defendant's care, custody, or employment when he defiled her; and Buster's Case, 90 Mo. 514, 2 S. W. Rep. 834, is cited and relied on in support of this position. The indictment in the case cited is similar to the one under review as to the form of the averments, and that indictment was held bad, not because of the form of the averments, but for the lack of an essential averment. We think the statements are direct and specific enough in the indictment before us. The indictment under review fails to state one essential averment in the language of the statute; the language of the statute being, "while she remains in his care, custody, or employment," while the language of the indictment is, "then and there being in the care, custody, and employment" of defendant. We deem the two statements, however, substantially equivalent to each other, and defendant could not have been misled by the averment that he defiled the girl, she "then and there being in his care, custody, or employment," instead of "while she remained in his care, custody, or employment."
2. The next contention is that the court erred in refusing to give the following instructions as prayed by defendant: ...
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