32 S.W. 1149 (Mo. 1895), State v. Bobbst

Citation:32 S.W. 1149, 131 Mo. 328
Opinion Judge:Gantt, P. J.
Party Name:The State v. Bobbst, Appellant
Attorney:Edmonston & Cullen for appellant. R. F. Walker, attorney general, and Morton Jourdan, assistant attorney general for the state.
Judge Panel:Gantt, P. J. Sherwood and Burgess, JJ., concur. Sherwood and Burgess, JJ., concur.
Case Date:December 03, 1895
Court:Supreme Court of Missouri
 
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Page 1149

32 S.W. 1149 (Mo. 1895)

131 Mo. 328

The State

v.

Bobbst, Appellant

Supreme Court of Missouri, Second Division

December 3, 1895

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

Reversed and remanded.

Edmonston & Cullen for appellant.

(1) There is no indictment in the case. The record nowhere shows that the grand jury returned an indictment against defendant. R. S. 1889, sec. 4092. (2) It was error to permit the father of the prosecutrix to testify that he sent her money to enable her to come home. It was not pertinent to any issue in the cause and was damaging to defendant. (3) The court erred in refusing to admit testimony offered to show that the prosecutrix was a harlot previous to her being taken away by Bobbst. State v. Gibson, 111 Mo. 92; State v. Johnson, 115 Mo. 480; Kelley's Crim. Law, secs. 552, 554; State v. Primm, 98 Mo. 368; Scruggs v. State, 90 Tenn. 81. (4) The instruction defining reasonable doubt to be "a substantial doubt growing out of, and consistent with, the evidence," was erroneous and contrary to a long and unbroken line of approved precedents. State v. Nueslein, 25 Mo. 111; State v. Wells, 111 Mo. 533; State v. Robinson, 117 Mo. 649; State v. Talmage, 107 Mo. 349. (5) The third instruction defining "concubinage" is erroneous. State v. Gibson, 111 Mo. 92, and authorities cited; State v. Wilkinson, 121 Mo. 485. The case of the State v. Feasel, 74 Mo. 524, has been overruled. (6) Instruction number 4 is objectionable. It is fatally ambiguous, contradictory, unintelligible, and erroneous. (7) There is no evidence that defendant took the prosecutrix away, within the meaning of the statute, for any purpose, and defendant's demurrer to the evidence should have been given, and the state's ninth instruction refused. Lewis v. People, 37 Mich. 518; State v. Crawford, 34 Iowa 40; People v. Plath, 100 N.Y. 590; Kelley's Crim. Law, sec. 550; State v. Gibson, supra; State v. Johnson, supra. (8) The girl left with defendant of her own free will, but even if he induced her to go for any other reason than concubinage he is not guilty, and the court should have so instructed, and failure to do so constitutes reversible error. R. S. 1889, sec. 4208; State v. Gibson, 108 Mo. 575; 111 Mo. 92; Kelley's Criminal Law, sec. 517. (9) It was reversible error to permit the prosecuting attorney, without rebuke, to call the defendant "an infamous, lecherous scoundrel." State v. Fischer, 124 Mo. 460; State v. Ulrich, 110 Mo. 350; State v. Young, 99 Mo. 666; State v. Jackson, 95 Mo. 623, and cases cited; State v. Elsner, 115 Mo. 401; Busette v. State, 101 Ind. 85.

R. F. Walker, attorney general, and Morton Jourdan, assistant attorney general for the state.

(1) It is complained that the court committed reversible error in not reprimanding the prosecuting attorney for his language toward the defendant, in which he referred to him as "this infamous scoundrel." It is not apparent what prejudice defendant could have suffered from this remark. Testimony had already developed the fact that he was devoid of principle as well as honor, and the mere fact that the prosecuting attorney chose to use this language in referring to him could not constitute reversible error. State v. Emory, 79 Mo. 461; State v. Zumbunson, 86 Mo. 111. (2) The third instruction properly declared the law. It told the jury that if the defendant took Martha Butler from the control and possession of her father, and that Martha Butler at the time was under the age of eighteen years, for the purpose of concubinage, then the defendant was guilty, and advised the jury as to the extent of the punishment to be assessed. The fourth told the jury that the question of the chastity of the prosecutrix could only be considered by them for the purpose of determining what credit should be attached to her testimony, and the fact that she was not virtuous would not constitute a defense; in other words, that it was as much a crime, under our statute, to abduct a girl without virtue or chastity as it was one who was virtuous, chaste, and pure. The fifth, that if the jury found that the prosecutrix, prior to the time of the taking away, made her home with her father, then the presumption was that she was still under the control and care of the father, even though at the exact time of the alleged departure, and for some days prior thereto, she had been at the home of her sister. The sixth advised the jury as to the credit to be attached to...

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