State v. Johnson

• Citation: 115 Mo. 480,22 S.W. 463
• Parties: STATE v. JOHNSON.
• Decision Date: 02 May 1893
• Court: United States State Supreme Court of Missouri

22 S.W. 463

115 Mo. 480

STATE v. JOHNSON.

Supreme Court of Missouri, Division No. 2.

May 2, 1893.

ABDUCTION OF FEMALE UNDER 18 — INDICTMENT — EVIDENCE.

1. An indictment charging that defendant, on a certain day "did, then and there being one P., a female under the age of 18 years, * * * unlawfully and feloniously take from one P., her father, he * * * then and there having in the legal charge" of her person, and without his consent, for the purpose of concubinage, is sufficient, under Rev. St. 1889, § 3484, providing that the taking away of any female under the age of 18, from her father, for the purpose of concubinage, is a felony.

2. Evidence by members of the grand jury indicting defendant, that the prosecuting attorney was present during their investigation, and while expressing their opinions and finding the indictment against him, is inadmissible, though Rev. St. 1889, § 4077, provides that such officer shall not be present during the expression of their opinions or the giving of their votes on any matter, since grand jurors are incompetent to testify to their own actions.

3. Statements of the prosecuting attorney as to what occurred in the grand jury room are inadmissible.

4. It is no defense to such indictment that the female taken for concubinage was not chaste.

5. Inducing the female, by solicitations and presents, to leave home, and go with defendant, is a "taking away," within the statute.

6. Though the jury were instructed that if defendant's purpose in taking her away was to cohabit with her, "even for a single night," such taking was for the purpose of concubinage, defendant cannot complain of the error, where it appears that he had lived with her as his wife for three months.

7. It is no defense that defendant had reason to believe that such female was over 18 years of age when the offense was committed.

8. Rulings of the trial court on the evidence, where its action is not questioned in the motion for a new trial, cannot be reviewed on appeal.

9. The circuit court of the county wherein defendant began making advances to the female, and urging her to go away with him, has jurisdiction, since it is the "taking away" for the purpose of concubinage that constitutes the offense, whether sexual intercourse follows or not.

10. The fact that the parties subsequently had sexual intercourse is evidence of the intent.

Appeal from circuit court, Warren county; W. W. Edwards, Judge.

William H. Johnson was convicted of taking away from her father a female under the age of 18 years, for the purpose of concubinage, and appeals. Affirmed.

The other facts fully appear in the following statement by BURGESS, J.:

At the March term, 1888, of the circuit court of Ralls county, the defendant was indicted for taking away from her father, in said county, one Rosa Price, a female under the age of 18 years, for the purpose of concubinage. A motion to quash the indictment was filed, and also a plea in abatement, both of which were overruled. The venue was changed, on the application of defendant, to the circuit court of Warren county, where a trial was had at an adjourned term of said court; and the 14th day of December, 1891, the defendant was found guilty, and his punishment assessed at two years' imprisonment in the penitentiary. The evidence tends to show that Rosa Price, during the years 1886 and 1887, lived with her father, Lewis Price, at New London, Ralls county, Mo.; that she was born in April, 1870, and was under the age of 18 years at the time of the commission of the alleged offense; that she had been working in a woolen mill, but her health began to fail, when she quit that, and became a book agent. In November, 1886, she became acquainted with and sold defendant a book. Defendant was a man of family, which she knew, and at that time proprietor of a drug store at New London. From that time defendant cultivated the prosecuting witness, followed her upon the streets, invited her into his store, told her of his love for her, made her many presents, consisting of jewelry, valentines, and money, and in January, 1887, proposed to her that she accompany him on a trip or visit. She accepted his invitation, and it was arranged for them to go to St. Louis. In February they took the same train; went over to Hannibal, there changed cars, and went to St. Louis. At St. Louis they stopped at the Bristol Hotel, — defendant paying all expenses, — where they registered as man and wife, and occupied the same bed. They returned the next day, — she going to Clarksville, Pike county, where she visited several days; he returning home. While at Clarksville she received many letters from defendant, in one of which he said: "If you possibly can go on that little trip next week, I hope you will do so, and I hope you can arrange it so you can stay longer this time, if possible. I want us to try to complete our arrangements this time, if we can possibly do so, for * * * I am getting tired of staying away from the little one who is nearer and dearer to me than all others on earth." He arranged by letter for her to meet him at St. Peter's, and go to St. Louis again. They spent two nights and days at the same hotel in St. Louis, occupying the same bed as on the former occasion. A third trip was taken to St. Louis, when defendant arranged another trip, — this time to Montreal, Canada, — where they lived together as man and wife, having sexual intercourse, and going under the assumed names of William Carrington and wife. After three months' residence in Montreal, defendant abandoned the prosecuting witness, leaving her a worthless check for $30, which is identified as being in his handwriting, and introduced in evidence. She returned to Ralls county, and upon the trial identified rings, a valentine, and a bracelet given her by defendant; and letters written by him to her (many of the letters had been burned by him) were introduced in evidence. The parents and neighbors testified, and the family record of births and deaths showed the age of the prosecuting witness to have been 17 at the time of the commission of the felony. Defendant's witnesses testified that her reputation for chastity and virtue was bad, while an equal number of her neighbors and friends testify it was good. Defendant established a good reputation for "honesty and veracity," but himself did not go upon the stand. Defendant did attempt to establish by testimony introduced in his behalf that the father had consented to his daughter's infamy, and was particeps criminis to her ruin, and that the girl had induced and persuaded defendant to accompany her. There was no evidence introduced on the part of defendant tending to contradict the witness Rosa as to the gifts, the writing of the letters, or check, nor as to their arrangements for their several trips to St. Louis and to Canada, where defendant abandoned her. After his conviction, defendant filed his motion for new trial, and also in arrest, which being overruled, the case is here by appeal.

Peers & Morsey, J. P. Wood, and Jos. S. Lauriex, for appellant. The Attorney General, for the State.

BURGESS, J., (after stating the facts.)

1. The indictment in this case is as follows: "The grand jurors for the state of Missouri, summoned from the body of Ralls county, impaneled, charged, and sworn, upon their oaths present that William H. Johnson, late of the county aforesaid, on the ____ day of ____, 1887, at the county of Ralls, state aforesaid, did, then and there being one Rosa Price, a female under the age of eighteen years, to wit, seventeen years, unlawfully and feloniously take from one Lewis Price, her father, he, the said Lewis Price, then and there having in the legal charge of the person of the said Rosa Price, without the consent and against the will of the said Lewis Price, for the purpose of concubinage, by having illicit sexual intercourse with him, the said William H. Johnson, against the peace and dignity of the state." This indictment is drawn under section 3484, Rev. St. 1889, which is as follows: "Every person who shall take away any female under the age of eighteen years from her father, mother, guardian, or other person having the legal charge of her person, either for the purpose of prostitution or concubinage, and any father, mother, guardian, or other person having the legal charge of her person, who shall consent to the same, shall, upon conviction thereof, be punished by imprisonment in the pententiary not exceeding five years." Defendant's contention is that the indictment is unintelligible, in that it does not allege that defendant took Rosa Price away from her father, nor that her father had legal charge of her. We do not think that it is subject to these objections. While it is rather inartistically drawn, it contains all of the averments required by the statute, and does, as we conceive, allege that the defendant took Rosa from her father, and that he was in the legal charge of her.

2. Defendant, in support of his plea in abatement to the indictment, offered to prove by several members of the grand jury by whom it was preferred, and also by the admissions of the prosecuting attorney, that he was present during their investigation and expressing their opinions in regard to the charge against defendant, and the finding of the indictment against him. The court excluded the evidence offered, and refused to hear the same. Section 4077, Rev. St. 1889, with regard to the rights and privileges of prosecuting attorneys, provides that, "such attorney shall be allowed at all times to appear before the grand jury, on his request, for the purpose of giving information relative to any matter cognizable by them, and may be permitted to interrogate witnesses before them when they or he shall deem it necessary; but no such attorney or other officer or person, except the grand jurors, shall be permitted to be present during the expression of their opinions or the giving their votes on any...