State v. Hesterly

Decision Date31 May 1904
PartiesTHE STATE v. HESTERLY, Appellant
CourtMissouri Supreme Court

Appeal from Howell Circuit Court. -- Hon. Argus Cox, Judge.

Reversed and remanded.

Green & Clark for appellant.

(1) The action of the court in overruling appellant's application for a continuance was prejudicial to appellant. Due diligence had been shown to procure the attendance of the absent witnesses, Clinton, Johnson and Nellie Lesh, and all the statutory requirements were met by the affidavit in support of the application and the evidence sought to be obtained was competent and appellant should have been allowed an opportunity to obtain it. State v. Warden, 94 Mo 648; State v. Anderson, 96 Mo. 250; State v Maddox, 117 Mo. 667; State v. Tatlow, 136 Mo 682. (2) The court erred in giving instruction 2 on the part of the State, for the reason that it submitted to the jury a question of fact not pertinent to the issue of the case, and for the further reason that said instruction was broader than the information. State v. Smith, 119 Mo. 439; State v. Hazeltine, 130 Mo. 475; State v. Walker, 167 Mo. 371. The literary society was no part of the school exercises. Sec. 9781, R. S. 1899. And the prosecutrix was not confided to the care and custody of appellant within the meaning of the law while attending the literary society in his company. State v. Young, 99 Mo. 289; State v. Rogers, 108 Mo. 204; State v. Terry, 106 Mo. 214.

Morton Jourdan also for appellant.

The information charged the carnal knowledge of Anna Byers while defendant was a public school teacher, and as such school teacher had the care, custody, employment and protection of Anna Byers as a student. His care, custody, employment and protection ceased when the girl returned to her home. Dutt v. Snodgrass, 66 Mo. 287; Diskins v. Glase, 85 Mo. 485; State ex rel. v. Osborn, 24 Mo.App. 315; State ex rel. v. Randall, 79 Mo.App. 226; State ex rel. v. Osborne, 32 Mo.App. 536; Bishop's Non-Contract Law, sec. 595; Bishop's New Criminal Law, sec. 886.

Edward C. Crow, Attorney-General, for the State.

OPINION

FOX, J.

On the fifteenth of January, 1903, the prosecuting attorney of Howell county filed an amended information in this cause. The trial was had upon the second count of the information, which was as follows:

"And M. E. Morrow, prosecuting attorney as aforesaid, further informs the court that on the day of December, A. D. 1902, at said Howell county, said William Hesterly, being then and there a public school teacher in said county, and as such teacher being then and there a person to whose care and protection one Anna Byers, as a student, was then and there confided, did then and there willfully, unlawfully and feloniously, defile her, the said Anna Byers, by then and there unlawfully, feloniously and carnally knowing her; she, the said Anna Byers, then and there being a female under the age of eighteen years, to-wit, of the age of sixteen years, and she, the said Anna Byers, then and there being and remaining in the care, custody, employment and protection of the said William Hesterly; against the peace and dignity of the State."

This cause was called for trial on the twenty-fourth of March, 1903. The defendant filed the following application for a continuance:

"W. S. Hesterly, defendant in the above entitled cause, being duly sworn, upon his oath states that he can not safely proceed to the trial of said cause at this term of court on account of the absence of H. Clinton, Riley Johnson and Nellie Lesh, who are competent and material witnesses for the defendant in said cause; that said witnesses reside in Douglas county, Missouri; that he believes that he can prove by the said witness Clinton that the prosecuting witness, Anna Byers, is of bad repute for truth and veracity, and virtue and chastity, in the neighborhood in which said Anna Byers lives; that he will also be able to prove by said Clinton that said Anna Byers had been guilty of specific acts of lewdness and immorality; that he will be able to prove by said witness Johnson that said Anna Byers, prosecuting witness, has had sexual intercourse with one George Bundren, prior to the filing of the information in this case; that her reputation for virtue and chastity in the neighborhood in which she lives is bad; that he will also be able to prove by said Johnson that he, said Johnson, attended school where this defendant was teaching at the time of the alleged defiling of said Anna Byers, as charged in the second count of the information in this cause, and that said witness will testify that at no time during the term of school was this defendant absent from the school grounds at the same time that said prosecuting witness was absent, except one time when said prosecuting witness went to the post office with defendant, and that at that time said witness, Johnson, was at a place that, if defendant and prosecuting witness had had sexual intercourse, said witness, Johnson, could have seen them; that he will be able to prove by said witness, Nellie Lesh, that said prosecuting witness, Anna Byers, admitted to said witness that she had had sexual intercourse with one George Bundren, prior to the filing of the information in this case, and that she and said Bundren were setting a trap for this defendant; that he believes said facts as above set out to be true; that he is unable to prove said facts by any other witness whose testimony can be as readily procured; that said witnesses are not absent by the connivance, procurement or consent of the defendant; that he caused to be issued out of the office of the clerk of this court, on the fourteenth day of March, 1903, a subpoena for each of said witnesses, and that said subpoenas were duly served upon said witnesses as follows: on said witness Johnson on the eighteenth day of March, 1903, and on said witness Clinton on the twentieth day of March, 1903, as will more fully appear by the return upon said subpoenas, under oath of this defendant; that said witness, Nellie Lesh, was subpoenaed at the former term of this court; that since the service of said subpoena upon said witness, Nellie Lesh, that is to say on or about the twenty-first day of March, 1903, said Nellie Lesh left this State, going to the State of Washington; that this defendant did not know of such fact until too late to give notice to take the deposition of said witness; that the wife of said witness Clinton is unable for said witness to leave his home to attend court, as will more fully appear by the certificate of her attending physician, Jno. W. Lovan, M. D., hereto attached and made a part hereof; that said witness Johnson is unable to leave his home on account of being sick with the measles, as will more fully appear from the certificate of his attending physician, M. H. Osburn, M. D., hereto attached and made a part hereof; that this application is not made for vexation or delay merely, but to obtain substantial justice on the trial of this cause; and this affiant further saith not."

The physicians' certificates, as above referred to, are as follows:

"Roosevelt, Mo. March 21, 1903.

"To Whom it may Concern: This is to certify that H. Clinton can not safely leave home on account of his wife. She is now under my treatment and is in a family way and is liable to be confined at any time, and it seems from all appearances that she has now gone the full time.

"Jno. W. Lovan, M. D."

"Ava, Mo., March 18, 1903.

"To Whom it May Concern: This is to certify that Riley Johnson is sick at this place with measles and that it is unsafe for him to leave his room for some days to come; that said patient has just taken said disease and has quite a severe attack.

"M. H. Osburn, M. D."

The prosecuting attorney filed a counter-affidavit, to which the defendant filed a re-joinder. The court seemed to treat the affidavit of defendant, the counter-affidavit of the prosecuting officer and the re-joinder of the defendant, as an issue framed for trial, and the State introduced, upon that issue, a number of witnesses who testified orally upon the matters embraced in the affidavits. Witnesses were examined in chief and cross-examined.

The defendant objected to all the oral testimony introduced by the State in resisting the application for a continuance, which objection was overruled, and the State then dismissed as to the first count in the information, and the application of defendant for a continuance was overruled and the trial proceeded.

The testimony on the part of the State shows that the defendant was the teacher of the public school, and that the prosecuting witness, Anna Byers, by her mother and step-father with whom she lived, was sent to school as charged in the information. The testimony shows that there were meetings of a literary society held at the schoolhouse, and that defendant frequently accompanied Anna Byers to those meetings, and the step-father testified that he understood that the "literary" was a part of the school, and that it was necessary for the pupils to attend. The mother of Anna Byers testified that she was sixteen years old in July, 1902. She further testified that it was understood that the "literary" was a part of the school. The defendant had charge of the school; the prosecuting witness was a pupil of the defendant at such school.

Anna Byers, the prosecuting witness, testified: That she was sixteen years of age; knew the defendant, attended the school of which he was the principal, as a student; that she attended the literary society on Wednesday nights; that defendant accompanied her to and from the literary society upon several occasions; that in September at Hollingshad's house, where the defendant lived, he put his arm around her and...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT