The State v. Volz
| Citation | 190 S.W. 307,269 Mo. 194 |
| Parties | THE STATE v. ARTHUR VOLZ, Appellant |
| Decision Date | 06 December 1916 |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Daniel D. Fisher Judge.
Reversed and remanded.
Bass & Bass for appellant.
(1) The requested instruction of defendant in the nature of a demurrer prayed for by defendant at the close of the State's case, should have been given. Sec. 4472, R. S 1909, Laws 1913, p. 218. (2) The instruction given by the court of its own motion is erroneous, in that it is confusing and improperly states the law and punishment thereunder. State v. Schenck, 238 Mo. 429; Sec 4472, R. S. 1909, Laws 1913, p. 218. (3) The instruction on circumstantial evidence prayed for by the defendant should have been given. State v. Kozlickie, 241 Mo. 301. (4) The court erred in overruling defendant's objection to special counsel for the State injecting testimony into the case during his closing address to the jury. (5) It was prejudicial error for the court to refuse to rebuke special counsel for State, when he went out of the record in his address to the jury. (6) It is prejudicial error and a violation of the statute on the part of special counsel for State, to refer to the failure of the defendant to take the stand and testify. Sec. 5243, R. S. 1909. The following cases are cited to support foregoing points in relation to the prejudicial errors in the address to the jury by the special State v. Horton, 247 Mo. 657; State v. Ferguson, 152 Mo. 92; State v. Wigger, 196 Mo. 90; State v. Leaver, 171 Mo.App. 371; State v. Upton, 130 Mo.App. 316; State v. Dietz, 235 Mo. 332; State v. Martin, 229 Mo. 620; State v. Webb, 254 Mo. 414; State v. Jackson, 95 Mo. 623; State v. James, 216 Mo. 394; State v. Newcomb, 220 Mo. 54.
John T. Barker, Attorney-General, and S. P. Howell, Assistant Attorney-General, for the State.
(1) The assessment of the punishment by the jury does not render the verdict defective for the reason that it was adopted by the court and therefore became its act. State v. Hainey, 168 Mo. 197; State v. Shearon, 183 S.W. 291; State v. Sutton, 232 Mo. 249; State v. Reed, 237 Mo. 227. (2) The instructions are in an approved form and fully advised the jury upon all questions of law necessary for their guidance. State v. Perrigan, 258 Mo. 233; State v. Salts, 263 Mo. 304; State v. Day, 188 Mo. 359. (3) The remarks made by special counsel for the State do not constitute reversible error under the facts of this case. Sec. 5242, R. S. 1909; State v. Degonia, 69 Mo. 485; State v. Fitzgerald, 130 Mo. 436; State v. Taylor, 134 Mo. 157; State v. Kelleher, 201 Mo. 627; State v. Larkin, 250 Mo. 218.
Upon an information charging him with having carnal knowledge of an unmarried female of previous chaste character, between the ages of fifteen and eighteen years, defendant was tried in the circuit court of the city of St. Louis, found guilty, and his punishment assessed at a fine of five hundred dollars and six months' imprisonment in the city jail. Defendant duly appealed. The prosecutrix on May 1, 1914, the date of the alleged offense, was sixteen years, one month and four days old, and resided, with her parents, in the city of St. Louis. About seven p. m. of that day, the defendant, a young man about twenty-one years old, living with his parents just across the street, asked the prosecutrix to take a walk with him. She had known the defendant about ten years and accepted the invitation. The two proceeded about six blocks from the prosecutrix's home out into O'Fallon Park and when they reached a dark, grassy place in the park, prosecutrix said that defendant asked to have intercourse with her and that "I refused, but I was forced to." That the defendant threw her down and had intercourse with her and said that "if anything happened to me, he would get me out of it." She testified that this was the first time that she had ever engaged in an act of sexual intercourse. The following February a girl baby was born. On cross-examination, prosecutrix admitted that a short time after this occurred she again had intercourse with the defendant, defendant telling her that if anything happened from the first act he would not get her out of it unless she again submitted to his lust. The mother of prosecutrix testified as to the age of prosecutrix and that her daughter had always been a good girl; had never worked out anywhere, but had assisted about the home, doing household duties. The mother noticed that the daughter was "getting large" and interrogated the daughter. Shortly after that the mother met the defendant on the street and told him about the situation and the defendant told her he would come over and see them, but that he would not do it while the witness's husband was at home. Defendant failed to come to the prosecutrix's home and the mother went to defendant's home and talked to defendant's mother about the matter. Shortly after this, defendant, accompanied by his brother, went to the home of prosecutrix and told prosecutrix's mother that they should have an abortion performed and that he would pay for it. He there admitted that he was the father of the unborn child. On cross-examination the mother of prosecutrix admitted that she employed an attorney to see if arrangements could not be made for defendant to marry her daughter, but denied that she had ever attempted to accept money in lieu of a prosecution. The mother of prosecutrix also wrote a letter to the father of defendant, informing him of the trouble. In response to this letter the defendant and a Mr. Frank came over to the house and stated that the father of the defendant would pay for the confinement, but the mother of prosecutrix refused to accept this, stating that "it was not treating my girl just or doing anything for her baby."
Five witnesses testified that, prior to this occurrence, the reputation of prosecutrix for virtue and chastity in that community was good.
The defendant produced as a witness one Mr. Charles Hade, who testified that prior to May 1, 1914, he had had sexual intercourse with the prosecutrix fifteen or eighteen times, but he was not very definite in fixing the place and time of the different occurrences, and on cross-examination admitted that he was related by marriage to the defendant on trial. Two other young men were placed on the stand by the defendant to testify that they each had had sexual intercourse with the prosecutrix, but they were unable to fix the date prior to May 1, 1914. Three police officers testified that they had seen the prosecutrix out late at night on different occasions, and as late as one o'clock a. m. one morning in July, 1914, with a young boy named Uncer. On cross-examination circumstances were brought out to show the existence of a friendly relationship between defendant's father and these policemen.
In rebuttal the prosecutrix testified that she was not out at one a. m., in July, 1914, with the Uncer boy, and her mother testified that the prosecutrix was never out late at night unless some elderly person or her brother or sister were with her. The State then called young Uncer who denied that he was out at one o'clock a. m., with the prosecutrix in July, 1914.
The defendant did not testify in his own behalf.
I. It is contended that the evidence was insufficient to support the verdict: (1) because there was no legal proof that defendant was over seventeen years of age, and (2) because the evidence proved a case of forcible ravishment only and therefore not such a case as could come within the meaning of section 4472, Revised Statutes 1909, as amended in the Laws of 1913 at page 218.
Each of said points must be ruled against appellant. Prosecutrix testified that defendant told her he was twenty-one years old. That was sufficient evidence to justify the jury in so finding. As to the second point it is sufficient to say that the sexual act denounced by the above section of the statute constitutes a crime when committed under the conditions detailed in the statute, whether accomplished with or without force, or with or without the consent of the female. [State v. Hamey, 168 Mo. 167, 67 S.W. 620.]
II. The first paragraph of instruction number one is attacked. Said paragraph reads as follows:
"If in consideration of all the testimony in the case, in the light of the court's instructions, you find and believe from the evidence that at the city of St. Louis and State of Missouri, on or about the first day of May A. D. 1914 or at any time within three years next before the filing of the information herein, the defendant Arthur Volz was then and there a male person over the age of sixteen years, and that he did then and there intentionally, unlawfully and feloniously have carnal knowledge of the body of one . . . and that at the time he had such carnal knowledge of the said . . . she was an unmarried female of previously chaste character between the ages of fifteen and eighteen years, you will find the defendant guilty as charged in the information and assess his punishment at imprisonment in the penitentiary for a term of two years, or by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in the city jail not less than one month nor more than six months or by both such fine and imprisonment; and unless you so find the facts to be, you will find the defendant not guilty."
Section 4472, supra, before being amended in 1913 (See Laws 1913, p 218), did fix the minimum age of the male at sixteen years and the maximum punishment at two years in the penitentiary. By said amendment the minimum age of the male was changed to seventeen years and the...
To continue reading
Request your trial