State v. Hesterly
Decision Date | 31 May 1904 |
Parties | THE STATE v. HESTERLY, Appellant |
Court | Missouri 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.
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:
The physicians' certificates, as above referred to, are as follows:
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...
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