State v. Wade.
| Decision Date | 31 December 1924 |
| Docket Number | No. 25621.,25621. |
| Citation | 268 S.W. 52 |
| Parties | STATE v. WADE. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Monroe County; Charles T. Hays, Judge.
George Wade was convicted of having? carnal knowledge of an unmarried female of previous chaste character between the ages of 15 and 18 years, and he appeals. Affirmed.
A. T. Stuart, of Paris, and E. L. Alford, of Perry, for appellant.
Jesse W. Barrett, Atty. Gen., and William L. Vandeventer, Sp. Asst. Atty. Gen., for the State.
Defendant was convicted in the Monroe county circuit court of the crime of having carnal knowledge of an unmarried female of previous chaste character, between the ages of 15 and 18 years. He was sentenced to imprisonment for a term of 2 years, and has appealed. The proof shows that the acts charged against defendant occurred on May 20, 1921. The law, as defined by section 3248, R. S. 1919, therefore governed the facts necessary to constitute the crime.
As the defendant earnestly contends that the case should not have been submitted to the jury and that we should not permit the conviction to stand, it is necessary to detail and to discuss the facts quite fully. The evidence itself is quite short.
The prosecutrix, Edna Carnes, testified that she and her mother and brother lived on a farm about one mile east of Paris, in Monroe county. Her brother had died prior to the trial. The defendant worked on said farm as a farm hand from March until June, 1921. On May 20, 1921, defendant was plowing in a field about one-half mile from the house where Edna and her mother lived. Edna was also working in the same field, running a disc. Her brother had helped her harness the team and get started, and then went to town. Her mother was at work at the house. Something went wrong with the harness or the disc and defendant assisted Edna in fixing it. Her testimony as to what occurred is the following in substance: Denfendant said "he wanted me to be his girl." Edna said, "No." He said, "Why?" She said, "Mother did not let me have company." Defendant then went on back to his work. About an hour later Edna stopped her team to rest and defendant stopped his team about two rods away and came over to her. Her testimony then proceeded as follows:
She then `testified that defendant had intercourse with her and told her not to tell her mother anything about it. They were right by the disc and were standing up. She said defendant pulled her off the disc and then had intercourse with her. He then said "Everything will be all right," and he told her "not to tell my mother or he would quit work."
The witness then testified to facts tending to prove penetration. Both she and defendant then resumed work in the field until noon. About 10 minutes were consumed in the occurrence which she detailed. Edna stayed at home that afternoon and helped work about the house, and Worked there the following day. She was 15 years old at the time, and had not been married, and had never had sexual relations with any man prior to the act with defendant. Defendant was over 17 years of age.
On cross-examination it was shown that the field, where the act is said to have occurred, was "kindy level," and had no corn or other vegetation growing upon it. There was no one in the field except Edna and the defendant. She had not known defendant before he went to work in March. He had been engaged about the place ever since he came at plowing, etc. His home was about 8 miles away. He continued to work there until June 25, 1921, or about 5 weeks after the alleged occurrence.
The testimony of defendant was that he lived 5 miles south of Paris and had lived there all his life, except while he was in the army 17 months during 1918 and 1919, when he saw service as a soldier in the States and in France. He said he worked for Eddie Carnes on May 20, 1921, and was plowing on that day, and that Eddie and Edna Carnes were there. He also said that one Buford was there. His testimony then proceeded as follows:
On cross-examination he was asked how long he had been working at the farming business, and said ever since he had been big enough; for something like 15 or 16 years. He said he began working for Eddie Carnes March 23d and quit the latter part of June. On redirect examination he denied telling Edna Carnes not to tell her mother anything. This was all the testimony in the case, except the defendant called five witnesses who testified that his reputation for morality and good citizenship was good. The state did not attempt to show that defendant did not sustain such reputation.
I. Appellant contends that his demurrer at the close of all the evidence should have been given and that we should now reverse the judgment rendered upon the verdict for the same reason. It is not contended that there is not clear and positive testimony in the record upon every essential element of the crime charged, but we are urged to take such action because "the courts in this state will not permit a conviction to stand upon the uncorroborated testimony of the prosecutrix, where her testimony is not in consonance and in harmony with the physical facts, the surrounding circumstances, and the ordinary experiences of mankind."
It must be conceded that the testimony of the prosecutrix concerning the acts and circumstances attending the alleged act of sexual intercourse with defendant is not corroborated. It is equally true that her uncorroborated testimony as to such acts furnished proof of every element of the crime charged against defendant. The most rigid cross-examination failed to weaken her story in any respect as to such occurrences. She is corroborated by defendant as to the presence of the two in the field at the time she fixed in her testimony. He said Eddie Carnes, deceased at the time of the trial, and one Buford were there also. No reason is assigned why Buford was not used as a witness by defendant. The prosecuting witness denied that Buford was present and testified that her brother had gone to town at the time of the occurrence.
We are now asked to reverse the case on the ground that it is unlikely that there is truth in her testimony that, "in the open daylight, in an open field, hard by her house," the defendant stopped his team and came over to where prosecutrix was resting her team and "boldly and without preliminaries solicited carnal intercourse, accompanied by the dire and terrorizing threat that if she did not yield `he would leave,' and he `persuaded me until I had to give up,'" and because she testified that the whole transaction occupied 10 minutes, while both parties were standing in the open field, where there were no vegetation and no crops of any kind, and that defendant immediately left after admonishing her not to tell her mother, with the additional blood curdling threat that, if she did, "he would quit work."
It is true that, in a number of cases, this court has held that the facts testified to by the prosecuting witness therein were so unusual and so out of harmony with human experience that such testimony had no probative force. Defendant has cited some of such cases. It is unnecessary to discuss the soundness of that rule here, for this case is readily distinguishable from all of them, at least from all the cases cited by appellant.
Most of such cases may be set aside at once as not controlling, by the single circumstance that they were cases of forcible rape, where outraged innocence would compel the woman to denounce the ravisher at the first opportunity. Burkett v. Gerth (Mo. App.) 253 S. W. 199; State v. Remley (Mo. Sup.) 237 S. W. 489; State v. Goodale, 210 Mo. 275, 109 S. W. 9; State v. Wilson, 91 Mo. 410, 3 S. W. 870; State v. Burgdorf, 53 Mo. 65, and Champagne v. Harney, 189 Mo. 709, 88 S. W. 92, cited by defendant, were all forcible rape cases, where immediate complaint was to be expected, and absence of such complaint rendered the entire story improbable.
State v. Tevis, 234 Mo. 276, 136 S. W. 339, was a case of incest. There the testimony of prosecutrix was contradicted by her own testimony and a motive was shown for getting the defendant out of the way.
In State v. Brown, 209 Mo. 413, 107 S. W. 1068, the charge was incest. Improper motive for the prosecution was shown. Prosecutrix sustained a bad reputation and defendant a good one. Much improbable testimony also appeared.
State v. Smith (Mo. App.) 259 S. W. 506, was a prosecution for failure of defendant to support his alleged illegitimate child. There prosecutrix sustained a bad reputation for chastity and defendant's reputation was concededly good. Prosecutrix was being ardently courted by several men during the time of conception. She made contradictory statements. She practically admitted the alleged sole act of intercourse with defendant was at her own solicitation and stated that folks generally thought that another than defendant was the father of her child.
State v. Primm, 98 Mo. 368, 11 S. W. 732, is not in point. It was a case of alleged seduction under promise of marriage. The...
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