State v. Weber

Decision Date04 December 1917
Docket NumberNo. 20394.,20394.
PartiesSTATE v. WEBER.
CourtMissouri Supreme Court

Appeal from Circuit Court, Christian County; Frank Stewart, Judge.

Pallas Weber was convicted of rape, and he appeals. Affirmed.

Upon an information charging him with the crime of statutory rape upon an unmarried female of previous chaste character between the ages of 15 and 18 years, defendant was tried in the circuit court of Christian county, found guilty, and his punishment assessed at two years in the penitentiary. Defendant duly appealed.

Evidence upon the part of the state tends to establish the following facts: The prosecutrix, then living with her parents near Ozark, Mo., began keeping company with the defendant in November, 1915. The first act of sexual intercourse occurred about February 10, 1916; prior to this act the defendant told the prosecutrix that he was 20 years old.

The trial of this case was held April 10, 1917. Upon the examination in chief of the prosecutrix the following occurred:

"Q. How old are you? A. Sixteen."

Upon cross-examination of the prosecutrix the following occurred:

"Q. What year were you born? A. 1901. Q. What day and month? A. July 9th. Q. 1901? A. 1901. Q. In the year 1915 how old were you? A. Fifteen years old. Q. Fifteen years old in the year of 1915? A. Yes, sir."

Prosecutrix gave birth to a child January 2, 1917, and she testified that the defendant was its father. Some time after the preliminary hearing prosecutrix had a conversation with the defendant, in which the defendant in substance said that prosecutrix could clear him if she wanted to; that she could "get up there and not say anything"; and that if she did not clear him he would go to the penitentiary. Defendant also told prosecutrix that the reason he could not take the prosecutrix as his wife was because he was not able; but he promised to help support the child. There was evidence tending to show that the reputation of prosecutrix with reference to chastity and virtue prior to February 10, 1916, was good.

The defendant's evidence was substantially as follows: Defendant, testifying in his own behalf, stated that in the conversation mentioned as occurring between him and the prosecutrix that the prosecutrix said "that she did not lay the blame altogether on me, and I asked her who, and she said Waddle, and that Waddle was the father of the child." He did not testify as to whether he had or had not had sexual intercourse with the prosecutrix. The defendant offered as a witness Z. Acuff, justice of the peace, and offered to prove by him that at the preliminary hearing, held before the witness, one Lawrence Waddle (then a witness at the preliminary hearing, but who at the time of this trial was out of the state) was asked whether or not, prior to February 10, 1916, he had had sexual intercourse with the prosecutrix, and that said witness refused to answer on the ground that it would incriminate him. This offer was excluded by the court. One of defendant's witnesses testified that one evening, in the winter of 1915, the prosecutrix was visiting at the home of a girl in the neighborhood. The witness and Waddle called to see the young ladies, Waddle calling to see the prosecutrix; that about 10 o'clock at night the Waddle boy and the prosecutrix went outside the house and remained about 30 minutes. The witness remained in the house, but said he could hear knocking outside of the house. "like a couple of horses out in the barn kicking, but it was at the side of the wall," and that he thought the noise was made by Waddle and the prosecutrix.

Barrett & Moore, of Ozark, for appellant. Frank W. McAllister, Atty. Gen., and Shrader P. Howell, Asst. Atty. Gen., for the State.

WILLIAMS, J. (after stating the facts as above).

I. Appellant contends that the court erred in overruling his application for a continuance. The record discloses that on the day the case was first set for trial, to wit, on February 27, 1917, defendant filed an application for a continuance on the ground that a material witness, one Lawrence Waddle, had recently left the state and was then in Oklahoma. The court denied the application for a continuance, but of its own motion continued and reset the cause for trial on April 10, 1917. On this latter date defendant again filed a motion for a continuance, alleging as a ground the absence of this same witness. In his second motion defendant alleged that on March 27, 1917, he located witness Waddle at Sand Springs, Okl., and on said date sent proper commission and interrogatories to a notary public in Oklahoma for the purpose of taking the deposition of said witness on April 3, 1917; that on the 29th day of March, 1917, the officer who had been thus commissioned arbitrarily returned said papers to the defendant's attorney, and refused to act in the premises; the returned papers having been received by defendant on the 30th or 31st of March, 1917. The application asked that the cause be continued so that further time might be had in which to take the deposition of the absent witness. The court overruled the motion and the cause proceeded to trial.

The court did not commit error in overruling the application. From the showing made it appears that defendant, after he learned the Oklahoma notary would not act in the matter, had yet remaining, before the trial, 10 days in which to make further effort to secure the deposition, but it does not appear that any further attempt was made until the morning the case was called for trial. The showing of due diligence upon the part of the applicant bears a very important part in determining his rights to a continuance. The showing made was very unsatisfactory in this regard, and we are of the opinion that the court was acting within the scope of a sound discretion in refusing the continuance. State v. Cain, 247 Mo. 700, loc. cit. 705, 153 S. W. 1039.

II. The main contention made by appellant as ground for reversal is that the court erred in overruling his demurrer to the evidence offered at the close of the case. In this behalf it is urged that there is not sufficient evidence to authorize the jury to find that at the time of the occurrence of the alleged carnal act on February 10, 1916, the prosecutrix was between 15 and 18 years of age as required by the statute upon which the information was based. Appellant contends that the evidence shows that at the time above mentioned the prosecutrix was under 15 years of age, and that therefore defendant...

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23 cases
  • State v. Pierson
    • United States
    • Missouri Supreme Court
    • December 14, 1932
    ... ... examination, but was further objectionable and prejudicial, ... for the reason that the prosecutor sought to have the jury ... draw an inference of guilt from the refusal of the defendant ... to testify, in violation of defendant's rights. State ... v. Weber, 272 Mo. 475, 199 S.W. 148; Masterson v ... Transit Co., 204 Mo. 507; Garrett v. Transit ... Co., 219 Mo. 65. (3) It was prejudicial error for the ... prosecutor, with the sanction of the court, to ask defendant ... on cross-examination, over defendant's objection and ... exception, this ... ...
  • State v. Conway
    • United States
    • Missouri Supreme Court
    • September 25, 1941
    ... ... with killing the deceased and his criminal case had been ... disposed of when he was testifying for the defendant in the ... civil case. The Masterson case was applied to a possible ... witness in a criminal case in State v. Weber, 272 ... Mo. 475, 199 S.W. 147. In that case Weber was convicted of ... statutory rape. In the course of his trial he sought to ... introduce the testimony of one Waddle taken at his ... preliminary hearing and at which Waddle had declined to ... answer the question of whether or not he had ... ...
  • State v. Bowdry
    • United States
    • Missouri Supreme Court
    • December 3, 1940
    ... ... Kissinger, 343 Mo. 781, 785[4], 123 S.W.2d 81, 83[4].] ... State v. Foley, 144 Mo. 600, 613(II), 46 S.W. 733, ... 736(2), holds statements made to an accused while under ... arrest and the fact that he made no reply thereto are ... inadmissible. [Consult also State v. Weber, 272 Mo ... 475, 481(III), 199 S.W. 147, 148[3]; Rex v. Watson, 2 ... Starkie, 116, 158, 171 Eng. Rep. 591.] Our Constitution, ... Art. II, Sec. 23, provides, in part, "that no person ... shall be compelled to testify against himself in a criminal ... cause ... " Missouri courts have held ... ...
  • State v. Pierson, 32316.
    • United States
    • Missouri Supreme Court
    • December 14, 1932
    ...have the jury draw an inference of guilt from the refusal of the defendant to testify, in violation of defendant's rights. State v. Weher, 272 Mo. 475, 199 S.W. 148; Masterson v. Transit Co., 204 Mo. 507; Garrett v. Transit Co., 219 Mo. 65. (3) It was prejudicial error for the prosecutor, w......
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