31 S.W. 20 (Mo. 1895), The State v. Lingle
| Judge | Gantt, P. J. Burgess and Sherwood, JJ., concur. Burgess and Sherwood, JJ., concur. |
| Parties | The State v. Lingle, Appellant |
| Citation | 31 S.W. 20,128 Mo. 528 |
| Date | 21 May 1895 |
| Court | Missouri Supreme Court |
| Docket Number | . |
Page 20
Appeal from Atchison Circuit Court. -- Hon. C. A. Anthony, Judge.
Affirmed.
(1) The court should have sustained defendant's demurrer to the evidence, for the reason that the transcript from the Gentry circuit court was not offered in evidence. State v. Gates, 20 Mo. 400; Daudt v. Harmon, 16 Mo.App. 203; Crone v. Dawson, 19 Mo.App. 214; Maupin v. Franklin Co., 67 Mo. 237; State v. Edwards, 19 Mo. 674; State v. Daugherty, 106 Mo. 182; Adler v. Long, 26 Mo.App. 226. (2) The Atchison circuit court had no jurisdiction of this cause, for the reason that the transcript from the Gentry circuit court did not contain a proper order changing the venue of the cause. R. S. 1889, sec. 4157; State v. Daniels, 66 Mo. 192. (3) The court erred in giving instruction number 1 for the state. It presents an issue not presented by the indictment, in the following clause: "And while she was still under the age of eighteen." Bank v. Murdock, 62 Mo. 70; State v. Nanert, 2 Mo.App. 295; Fairgrieve v. Moberly, 29 Mo.App. 141; Melvin v. Railroad, 89 Mo. 106; Kinney v. Railroad, 70 Mo. 252; Waddingham v. Hulett, 95 Mo. 528; State v. Warner, 57 Mo.App. 502. This instruction is in conflict with the first given at the instance of the defendant and is not cured by that instruction. Jones v. Talbott, 4 Mo. 279; State v. Herrell, 97 Mo. 105; State v. Nally, 87 Mo. 644; State v. Simms, 68 Mo. 305; State v. Jackson, 95 Mo. 623. (4) The second instruction for the state was erroneous in that it singled out the wife of defendant and gave a rule for determining her credibility different from that applied to other witnesses. State v. Hundley, 46 Mo. 414; State v. Young, 99 Mo. 66; State v. Anderson, 19 Mo. 241; State v. Schoenwald, 31 Mo. 147; State v. Smith, 53 Mo. 267. (5) The third instruction given for the state is palpably erroneous in that it instructs the jury to "take into consideration the character of the witness, his or her manner upon the stand, his or her interest, if any, in the result of the trial, his or her relation to or feelings toward the defendant," thus directly calling their attention to the position occupied by defendant's witnesses. State v. Orr, 65 Mo. 342. This error is not cured by the giving of a correct instruction on the part of defendant. State v. Nally, 87 Mo. 644; State v. Herrell, 97 Mo. 105; State v. Mitchell, 64 Mo. 191; State v. Jackson, 95 Mo. 623. (6) The fourth instruction for the state is erroneous in that it tells the jury that before they can acquit they must believe that the evidence of a higher offense is sufficient to convict the defendant if on trial for such higher offense. This is, in effect, instructing them that, before they can acquit, they must believe from the evidence, beyond a reasonable doubt, that defendant had feloniously ravished his ward. This is not the law of this state. In no criminal case in which a special defense is interposed does it devolve upon the defendant to establish such a defense beyond a reasonable doubt. State v. Hundley, 46 Mo. 414; State v. Rockett, 16 Mo.App. 554; State v. Howell, 100 Mo. 628; State v. Lewis, 69 Mo. 92. (7) The indictment in this case is fatally defective, and the judgment should have been arrested for that reason. It is true that no motion to quash it was filed, but where the indictment is wanting in a material allegation, and is not merely informal, advantage may be taken of the defect by motion in arrest or for the first time in the appellate court. State v. Meyers, 99 Mo. 107. The indictment does not even inferentially allege that Clara Wheatley was under the age of eighteen years at the time of her alleged defilement. This was a material allegation. "A clear substantive charge constituting the offense is as necessary as it ever was." State v. Reakey, 62 Mo. 40; State v. Fisher, 58 Mo. 256. The offense attempted to be set forth in the indictment is one of statutory origin, and where this is the case, care and precision is required to bring the accused within the exact terms of the statute. State v. Gabriel, 88 Mo. 631; State v. Arter, 65 Mo. 653; State v. Helm, 6 Mo. 263; State v. Evers, 49 Mo. 542; State v. Pemberton, 30 Mo. 376; State v. Houx, 109 Mo. 654; State v. Green, 111 Mo. 585; State v. Blair, 69 Mo. 317.
(1) An indictment setting forth what is necessary to constitute an offense, as defined by the statute, is sufficient. State v. Anderson, 81 Mo. 78; State v. Madden, 81 Mo. 421. The indictment in the case follows the language of the statute and is not, therefore, subject to valid objection. R. S. 1889, sec. 3487; State v. Terry, 106 Mo. 209. (2) No objections were made or exceptions saved to the introduction or exclusion of testimony prejudicial to appellant and on this point he can not properly be heard to complain. State v. Hope, 100 Mo. 347; State v. Meyers, 99 Mo. 107. (3) The first instruction given by the court formally defines the crime of a guardian defiling a ward and is not subject to objection. It conforms in all material particulars to the form approved in State v. Strattman, 100 Mo. 540, as does the second instruction in regard to the weight to be attached to the testimony of defendant and his wife. (4) While the testimony of the girl tends to prove a rape, it is submitted that all the facts connected with the case tend to show that she consented to the intimacy before the act was consummated. The court, following the Strattman case, 100 Mo. 550, will take all of these facts into consideration in determining whether she consented or not. (5) There was no evidence that the girl was not of good character, and no testimony was offered to that effect, except the innuendoes of the defendant and his wife; those of the former are to be despised and of the latter to be pitied. The girl's character was not in issue. This court has very clearly said that "a ward's character or reputation or her consent are not to be considered in a case of this kind, but that the simple act of carnal knowledge is sufficient to constitute the crime." State v. Rogers, 108 Mo. 202.
OPINION
Page 21
[128 Mo. 533]
At the April term, 1893, of the circuit court of Gentry county, the defendant was indicted for defiling Clara F. Wheatley, a female under the age of eighteen years who had been and was then intrusted by her parents to his care.
On his application a change of venue was granted to Atchison county and the record was certified accordingly. He was duly arraigned and pleaded "not guilty."
At the January term, 1894, of the Atchison circuit court, both parties, the state and defendant, announcing ready, the trial was proceeded with, resulting in a verdict of guilty and a sentence of three years' imprisonment in the penitentiary. Motions for a new trial and in arrest were duly filed, and, upon being overruled, an appeal was applied for and granted to this court,
The indictment charges an offense under section 3487, Revised Statutes, 1889, and, omitting formal parts, is in these words: "That Oscar B. Lingle, late of the county aforesaid, on the first day of August, 1893, a person to whose care and protection one Clara F. [128 Mo. 534] Wheatley, a female under the age of eighteen years, to wit, of the age of sixteen years, had been and was then and there confided, her the said Clara F. Wheatley, unlawfully and feloniously did defile by then and there unlawfully and feloniously, carnally knowing her, and having carnal knowledge of her body, while she, the said Clara F. Wheatley, was then and there in the care, custody and employment of him, the said Oscar B. Lingle, against," etc.
The defendant is a married man, forty-nine years old. In 1891 and up to November, 1892, he resided at King City. Some time in July, 1891, the defendant employed Clara F. Wheatley, a girl then sixteen years old to do the housework in his family, his wife being sick. He made the arrangements for her employment with the girl's father, assuring him that he (appellant) would pay her whatever she could earn; "that she would be treated just as if she were at home, good care to be taken of her, and that he would see that she...
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