State v. Fischer

• Citation: 27 S.W. 1109,124 Mo. 460
• Parties: The State v. Fischer, Appellant
• Decision Date: 05 November 1894
• Court: United States State Supreme Court of Missouri

27 S.W. 1109

124 Mo. 460

The State v. Fischer, Appellant

Supreme Court of Missouri, Second Division

November 5, 1894

Appeal from Pemiscot Circuit Court. -- Hon. H. C. Riley, Judge.

Reversed and remanded.

R. F Walker, Attorney General, for the state.

(1) This court will not pass upon the sufficiency of the testimony except where there is a total failure of proof, and where it is evident the jury were actuated by prejudice or passion. No such conclusion can be reached by reading the record in this case. State v. Young, 24 S.W. 1038; State v. Banks, 118 Mo. 117; State v Hermann, 117 Mo. 629; State v. Moxley, 115 Mo 644; State v. Burd, 115 Mo. 405; State v. Richardson, 117 Mo. 586. (2) The instructions fully and correctly declare the law, with exceeding liberality to the defendant, present every feature suggested by the indictment and the testimony. State v. Wheeler, 108 Mo. 662; State v. McCaskey, 104 Mo. 647; State v. Brandenburg, 118 Mo. 181; State v. Patterson, 88 Mo. 88; State v. Hill, 91 Mo. 429. (3) No error was committed by the trial court in overruling defendant's motion for new trial, because of the discovery of new testimony. No diligence is shown. Nor does the defendant make an affidavit of any character in support of the allegation. State v. Campbell, 115 Mo. 391; State v. Welsor, 117 Mo. 570; Hall v. State, 26 S.W. 72. (4) The remarks of counsel for the state could not have prejudiced the defendant. It was a mere conclusion of the attorney; nothing more. It certainly did not constitute reversible error. State v. Young, 105 Mo. 634.

OPINION

Burgess, J.

From a conviction in the circuit court of Pemiscot county for seducing one Ida B. Phillips, an unmarried female of good repute, under promise of marriage, defendant appeals. His punishment was assessed at two years' imprisonment in the penitentiary. No brief has been filed on the part of defendant.

Ida B. Phillips, at the time of the alleged seduction, October, 1892, was but seventeen years of age. During that year defendant was employed as a farm laborer, jointly by one Lewis and the father of Ida, and during the cropping season he and the girl worked together in the fields upon farms of both Lewis and Phillips. During the spring defendant began paying unusual attention to Ida and proposed to marry her as soon as she arrived at the age of eighteen years, which would be in January, 1893, to which she assented, and thereafter he occasionally accompanied her from home to public gatherings. In October, 1892, while on their way together to work in a field, defendant asked her to have intercourse with him; he again renewed his promise of marriage, and relying thereon she yielded to his wishes. A child was thereafter born to her, as the result of the intercourse. Defendant stated to one Hutchison, a witness, that he had intercourse with the girl; but he testified in his own behalf, and denied any courtship, promise of marriage, seduction or intercourse with her. He also established a good reputation.

The first contention set forth in the motion for a new trial is, that the verdict of the jury is against the evidence. This court has so often held that it will not undertake to pass upon the sufficiency of the evidence to support a verdict, except where there is an entire failure of proof, that it would be but little less than a work of supererogation to refer to authorities upon the subject. Only a few of the more recent ones will be referred to. State v. Young, 119 Mo. 495, 24 S.W. 1038; State v. Banks, 118 Mo. 117, 23 S.W. 1079; State v. Punshon, ante, p. 448.

It was also insisted in the motion for a new trial that the court erred in instructing the jury; but the instructions seem to be in conformity to the law as laid down by this court in similar cases, and not subject to the objection urged against them. State v. Hill, 91 Mo. 423, 4 S.W. 121; State v. McCaskey, 104 Mo. 644, 16 S.W. 511; State v. Reeves, 97 Mo. 668, 10 S.W. 841; State v. Primm, 98 Mo. 368, 11 S.W. 732.

The defendant himself testified to the good repute of the prosecuting witness up to the time of the alleged offense, and her mother, Mrs. Phillips, testified to the attentions of defendant to her daughter and her preparations to get married; that her father was opposed to her marrying the defendant and that she heard defendant say to Ida that she could marry when eighteen years old without her parents doing anything. And at another time that she heard him say that he was going to get married. That he kept company with no other young lady, and seemed to be very fond of her daughter.

The prosecuting witness swears, positively, to a promise of marriage made by defendant several months before the alleged seduction in the October following, and we think the evidence sufficient by way of corroborating circumstances. It seems that defendant did not go out with her more than once or twice during the time that he worked for her father and Lewis, but they were thrown together working in the field almost every day. There may have been no promise to marry the girl but the evidence tends to show that there was. Whether the testimony of the prosecuting witness, and the facts as set forth, outweigh the positive denial of the defendant was a question for the jury to determine, they being the sole judges of the weight of the testimony.

One witness testified to a conversation had by the defendant with him in which he stated, in substance, that he had had sexual intercourse with the girl. And the fact that he stated to her father, when he insisted upon his...