State v. Miller
| Decision Date | 04 January 1915 |
| Parties | THE STATE v. SYLVESTER MILLER, Appellant |
| Court | Missouri Supreme Court |
Appeal from Grundy Circuit Court. -- Hon. George Hall, Special Judge.
Reversed and remanded.
R. E Kavanaugh and George H. Hubbell for appellant.
(1) The tenth instruction for the State assumes the fact of three acts of intercourse, and is a comment on the evidence. State v. Langley, 248 Mo. 554; Linn v. Bridge Co., 78 Mo.App. 111; Stone v. Hunt, 94 Mo. 480. (2) State's instructions numbered 1, 2, 3, and 4 are contradictory to State's instruction numbered 10 and constitute reversible error. State v. Palmberg, 199 Mo. 240; State v. Schenk, 238 Mo. 457; State v Pruitt, 202 Mo. 49. (3) The court erred in denying defendant's request to instruct on assault with intent to rape. State v. Chissell, 245 Mo. 554; State v Conway, 241 Mo. 287. (4) The remarks of the prosecuting attorney in his argument to the jury constitute reversible error, and the court erred in failing to rule and to rebuke counsel for the State and in failing to instruct the jury to disregard said remarks. State v. Jones, 249 Mo. 80; State v. Hess, 240 Mo. 147; State v. Brown, 247 Mo. 729; State v. Furgeson, 152 Mo. 99; State v. Wellman, 253 Mo. 302; State v. Bobbst, 131 Mo. 338; State v. Webb, 254 Mo. 414. (5) The court erred in sustaining the State's objection to the deposition of Sigel Speery. Sec. 6411, R. S. 1909; O'Brien v. Transit Co., 212 Mo. 70; McFarland v. Accident Assn., 124 Mo. 221; Moudy v. Beef & Provision Co., 149 Mo.App. 421; Love v. Cherry, 24 Iowa 209; Cohen v. Daniels, 25 Iowa 90. (6) The court erred in overruling defendant's objection to the introduction of any evidence tending to show other and subsequent acts of intercourse. State v. Palmberg, 199 Mo. 233; State v. McKinney, 254 Mo. 689. (7) The prosecutrix gave testimony of an indecent or common assault and the trial court erred in ignoring this issue in submitting the issues to the jury and denying defendant's request. State v. Hoag, 232 Mo. 316.
John T. Barker, Attorney-General, and Lee B. Ewing, Assistant Attorney-General, for the State.
(1) The instructions given by the court properly declared the law of this case. When construed together there is no error in same. State v. Wilcox, 111 Mo. 572; State v. Weisman, 238 Mo. 558; State v. Montgomery, 230 Mo. 671; State v. McKenzie, 177 Mo. 715; State v. Hall, 228 Mo. 469; State v. Moore, 168 Mo. 432; State v. Miller, 111 Mo. 551; State v. Mathews, 98 Mo. 125; State v. McClure, 25 Mo. 338. Instruction 10 is correct, and appellant's criticism of same is not warranted. Instructions 1, 2, 3, 4, when read in connection with instruction 10, are correct declarations of law. (a) Instruction No. 3 uses the term "intercourse." The other instructions use the term "sexual intercourse," "carnal knowledge." The last two terms are synonymous, and mean a completed act of intercourse. Webster's International Dictionary. The testimony shows a completed act; and in addition, prosecutrix gave birth to a child. State v. Swain, 239 Mo. 723; State v. Brown, 247 Mo. 584. (b) The court did not err in refusing to instruct on assault with intent to commit rape. The testimony shows a completed offense. State v. Sykes, 248 Mo. 714; State v. McCaffrey, 225 Mo. 623. (2) On the argument of this case the prosecuting attorney said: "Gentlemen, this man deserves the severest punishment; he tried to get his wife to be a prostitute and sell herself to the lust of other men." He further stated in the argument as follows: "Gentlemen of the jury, if you do not convict this man you ought never to be allowed to set on another jury in Grundy county; there will be no use of prosecuting bootleggers because these lawyers will make these kind of defenses for them." We think the above remarks, especially the first one, wholly indefensible, and of such character as might be highly prejudicial to appellant. State v. Hess, 247 Mo. 147; State v. Brown, 247 Mo. 728. (3) The court did not err in excluding the depositions of Sigel Speery. Sec. 6411, R. S. 1909; O'Brien v. Transit Co., 212 Mo. 70. (4) The court did not err in overruling defendant's objection to the introduction of evidence tending to show subsequent acts of sexual intercourse between prosecutrix and appellant. State v. Young, 99 Mo. 284; State v. Henderson, 243 Mo. 503; State v. McKinney, 254 Mo. 698; People v. Koeller, 142 Cal. 621; Lipham v. State, 125 Ga. 52; State v. Trustee, 128 Iowa 82; State v. Peres, 27 Mont. 358; State v. Woodruff, 72 Neb. 815; State v. Sykes, 112 Tenn. 572; State v. Fetterly, 33 Wash. 599. (5) The evidence was sufficient to sustain the judgment. State v. Swain, 239 Mo. 723; State v. Wilcox, 111 Mo. 569.
Defendant was charged with carnally knowing Minnie Bell Woods, a female child under the age of fourteen years. The jury convicted him and fixed his punishment at fifteen years' imprisonment in the penitentiary.
Frank Woods and wife, the parents of Minnie, were married at Trenton, Missouri, and lived there at intervals. They had lived in St. Joseph about a year prior to October, 1912. They had six children and were so poor that the children seldom had necessary clothing to go to school. The mother could neither read nor write, and was a mother before she was a wife. The father was a drunkard and was in the workhouse in St. Joseph from September 9, 1912, convicted of drunkenness and abusing his wife. James Miller, the father of Mrs. Woods, lived at Trenton. On October 8, 1912, Mrs. Woods and the younger children, including Minnie, went to Trenton, their fare being paid by the city. They moved into a house in Trenton belonging to James Miller. The defendant lived at Trenton, was forty-six years old, had a wife and two small children. He worked in the mines. He and Mrs. Woods were double cousins. Minnie's father did not join the family at Trenton until about October 15th.
Two or three days after Mrs. Woods and the children got to Trenton, Minnie went with the defendant to his house and staid all night. On the way the defendant gave her a half dollar to buy things to eat. She testified that he told her not to show the money to his wife and that he tickled her hand. Her sister had told her what that meant. She testified that while at defendant's house she showed the half dollar to defendant's wife and told her about the defendant tickling her hand and what it meant. As to that incident the defendant testified as follows:
As a result, the defendant's wife left him at once, and in a few days defendant took up his abode at the Woods home, moving his effects to that place a little at a time during the course of a week or more.
About the 18th of October defendant went to a show with Minnie. She testified that on the way back from the show they went to the defendant's house and that defendant there had sexual intercourse with her; that several days later the carnal act was repeated at the bridge, and that about October 25th it occurred again at defendant's house, whither they had gone for some dishes. About Christmas, Frank Woods had a disagreement with the defendant about their accounts, and the defendant left, going to live again with his wife.
Minnie told no one about defendant's sexual intercourse with her until after a "full-term" female child was born to her on July 8, 1913. That child lived about half an hour. Minnie was born July 15, 1901, and was not twelve years old until about a week after her child was born. According to the testimony of Minnie and her mother, neither of them knew that she was pregnant until she was in the throes of maternity. There was no physician present until several hours after the child was born. When the physician came, Minnie told him that the defendant was the father of the child, and he wrote that fact in the report of the child's birth. That report was read in evidence without objection.
One Sigel Speery lived at the Woods home in St. Joseph for a few weeks. He was an old acquaintance and fellow laborer of Frank Woods. The evidence is contradictory as to just when he left the Woods home. While there he went with Minnie to a store about a block distant and bought for her a pair of shoes and some clothes. Minnie and her mother testified that he furnished those articles with money due from him to Mrs. Woods. At a term of the court previous to the trial, Speery furnished Frank Woods with money to enable him to attend the trial of the case.
The Woods family moved back to St. Joseph after the birth of the child. Minnie and her mother contradicted each other as to whether Speery slept in the mother's room on the floor and as to whether the mother drove Speery away from the place, Minnie affirming and the mother denying.
Samantha Ferguson, Minnie's sister, testified that she (witness) was sixteen years old and had been married over two years, and that her husband had spent eighteen months of that time in the penitentiary, while she was in the House of the Good Shepherd. She testified that she and her husband had notified her mother never to put foot in her house again; that she had gone to the office of defendant's attorney to tell what she knew. She testified that when Minnie was about nine years old she had seen her sitting on Speery's lap in the presence of the family and that he had his hand under her dress.
Defendant took Speery's deposition at Trenton, January 17, 1914,...
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