23 S.W. 1080 (Mo. 1893), The State v. Brandenburg

Citation:23 S.W. 1080, 118 Mo. 181
Opinion Judge:Burgess, J.
Party Name:The State v. Brandenburg, Appellant
Attorney:Edmonston & Cullen for appellant. R. F. Walker, Attorney General, for the state.
Case Date:November 21, 1893
Court:Supreme Court of Missouri
 
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Page 1080

23 S.W. 1080 (Mo. 1893)

118 Mo. 181

The State

v.

Brandenburg, Appellant

Supreme Court of Missouri, Second Division

November 21, 1893

Appeal from Montgomery Circuit Court. -- Hon. E. M. Hughes, Judge.

Affirmed.

Edmonston & Cullen for appellant.

(1) The indictment is insufficient. It should allege the age of the girl and it or the record should read, "Sworn and charged to inquire into and for the body of Montgomery county." State v. Brooks, 94 Mo. 121; State v. Freeman, 21 Mo. 481; State v. Vincent, 91 Mo. 665. (2) It was error to allow the witnesses, Appling, MacMahan and Bellamy to testify to the reputation of the prosecutrix. The state must by testimony show affirmatively that chastity continued down to the very day of seduction. State v. Dietrick, 51 Iowa 467; State v. Wells, 48 Iowa 671; State v. Gates, 6 N.W. 404; State v. McCasky, 104 Mo. 644; Carpenter v. People, 8 Barb. (N. Y.) 603; Bishop on Statutory Crimes [2 Ed.], sec. 639. (3) Evidence of defendant's conduct towards the girl before and after the seduction is admissible to determine whether consent was obtained by seductive arts. State v. Curran, 3 Am. Cr. Rep. 405; Lewis v. People, 37 Mich. 518; People v. Gould, 70 Mich. 240; Callahan v. State, 63 Ind. 198; Wood v. State, 48 Ga. 192. (4) Again, he was entitled to this testimony to show that there was no deceit, no broken promises, no misleading, in fact, no seduction. Deceit is the gravamen of the offense and where there is no deceit, no subtle means, no blandishments, nothing but a plain blunt offer of marriage, and that not accepted, not relied upon, but rejected and deferred, there is no seduction. People v. Gould, 70 Mich. 240; State v. Horton, 100 N.C. 443; Bailey v. O'Bannon, 28 Mo.App. 39; State v. Reeves, 97 Mo. 668; Smith v. Milburn, 17 Iowa 31; Baird v. Boehner, 33 N.W. 694; State v. Patterson, 88 Mo. 94; Wharton on Criminal Law [9 Ed.], sec. 1758. (5) The court erred in its instruction defining "good repute." "Good repute" as used in our statute means the same as "previous chaste character" and before the jury can convict they must believe beyond a reasonable doubt that the woman is chaste, not of good reputation. State v. Patterson, 88 Mo. 88; State v. Hill, 91 Mo. 429; State v. Wheeler, 84 Mo. 253; State v. Primm, 98 Mo. 368. (6) The court should have instructed the jury that defendant was a competent witness in his own behalf; that they were the judges of the credibility of the witnesses and the weight of the evidence; that no conviction could be had unless the prosecutrix was induced to consent by reason of a promise and a reliance upon it and they should disregard all statements made by the attorney Ball about the defendant's fleeing. It was the court's duty to instruct on all these points and all others in the case even though not requested. State v. Palmer, 88 Mo. 508, and State v. Banks, 73 Mo. 592...

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