State v. Ansel

• Decision Date: 03 December 1923
• Docket Number: No. 24936.,24936.
• Parties: STATE v. ANSEL.
• Court: Missouri Supreme Court

256 S.W. 762

STATE v. ANSEL.

No. 24936.

Supreme Court of Missouri, Division No. 2.

December 3, 1923.

Appeal from Circuit Court, Boone County; David H. Harris, Judge.

Lyle Ansel was convicted of statutory rape, and he appeals. Affirmed.

E. C. Anderson, of Columbia, for appellant. Jesse W. Barrett, Atty. Gen., and Robert

W. Otto, Asst. Atty. Gen., for the State.

Statement.

RAILEY, C.

On October 13, 1922, the prosecuting attorney of Boone county, Mo., filed, in the circuit court of said county, a verified, amended information, charging therein that defendant "at the said county of Boone and state of Missouri, on or about the ______ day of December, 1921, did then and there unlawfully and feloniously, in and upon one Edith Corum, a female person under the age of 16 years, to wit, 15 years of age, unlawfully and feloniously, did make an assault, and her, the said Edith Corum, then and there unlawfully and feloniously did ravish and carnally know, against the peace and dignity of the state." Defendant was duly arraigned, and entered a plea of not guilty. He was tried before a jury, and, on October 13, 1922, the jury returned the following verdict:

"We, the jury, find the defendant guilty as charged, and assess his punishment in the state penitentiary for a term of three years.

                        "[Signed] O. B. Wilson, Foreman."
                

Appellant filed motions for a new trial and in arrest of judgment. Both motions were overruled; he was sentenced in conformity to said verdict, judgment was entered against him, and he appealed the cause to this court.

State's Evidence.

The evidence on the part of the state tended to show that the prosecuting witness, Edith Corum, lived with her father and mother, in the country, about nine miles from Sturgeon, in Boone county, Mo.; that she would be 16 years of age on October 14, 1922; that she had known defendant, Ansel, for about one year; that in the early part O. December, 1921, defendant took her to the home of her sister, about one-half mile distant, in a one-horse buggy, about 4 o'clock in the afternoon, and, by agreement, returned for her in said buggy about 7 o'clock p. m. of said day, and they started back to her home. She testified that on the way to her home, while in the buggy, the defendant had sexual intercourse with her; that she had gone with defendant about four times and with other boys before this; that she never had sexual intercourse with any other person; that defendant was the father of her child, born on the 3d day of August, 1922; that he never had sexual intercourse with her at any other time; that he promised to marry her if anything happened.

Defendant's Evidence.

Defendant's evidence tends to show that he was about 19 years old; that the prosecuting witness had kept company with other young men—that is, going to church and parties— both in the daytime and in the nighttime. The defendant testified that he land known the prosecutrix for about two years; that he had been in her company a good deal; that he did not take her buggy riding in the early part of December, 1921; that he did not have sexual intercourse with her at any time; that he never promised to marry her, and was not the father of her child.

On cross-examination, defendant admitted that he took the prosecutrix in his buggy to her sister's about 5 p. m., but fixed the date as October 16, 1921. He said he went back that night and got her, about 6:30 p. m., and they drove around until about 9 o'clock that night; that they were riding in a one-horse buggy, and did not stop.

Opinion.

I. Appellant challenges the correctness of instruction 1, given by the court, which reads as follows:

"The court instructs the jury that under the law of this state it is made a felony for a man to have carnal knowledge of a female child under the age of 16 years, regardless as to whether one or more male persons, had, either prior or subsequent to the alleged commission of the offense charged, had carnal knowledge of the said female child, and regardless as to whether the female child gave her consent to such act, for the law of this state renders a child under the age of 16 years incapable of giving her consent to an act of carnal knowledge of her person.

"Therefore if you find and believe from the evidence in this case, and beyond a reasonable doubt, that at and in the county of Boone and state of Missouri, on or about the ____ day of December, 1921, or at any time prior to the filing of the complaint in this case, to wit, the 16th day of September, 1922, the defendant, Lyle Ansel, had carnal knowledge of the female child named Edith Corum, and that at said time the said Edith Corum was under the age of 16 years, then you will find the defendant guilty of rape, as charged in the information, and assess his punishment at death, or imprisonment in the state penitentiary for a term of not less than two years."

Section 3247, It. S. 1919, as amended by the Laws of 1921, page 284a, covering this case, reads as follows:

"Every person who shall be convicted of rape, either by carnally and unlawfully knowing any female child under the age of 16 years, or by forcibly ravishing any woman of the age of sixteen years or upward, shall suffer death, or be punished by imprisonment in the penitentiary for not less than two years, in the discretion of the jury."

The complaint of appellant, is leveled at the italicised portion of the above instruction, as follows:

"This instruction, in effect, told the jury that the prosecutrix had been abused by some males, and no doubt influenced the jury to convict the defendant for the crime of others, whether guilty or not, under the evidence before the court."

The above contention, is not sustained by the italicised portion of the instruction supra. The defendant introduced several witnesses, who testified that the general reputation of prosecutrix for virtue and chastity was bad, and that she had been associating with other young men.

Section 4025, R. S. 1919, among other things, provides that:

"Whether requested or not, the court must instruct the jury in writing upon all questions of law arising in the case which are necessary for their information in giving their verdict; which instruction shall include, whenever necessary, the subjects of good character and reasonable doubt," etc.

The court complied with the requirements of the above statute, by instructing as to defendant's previous good character, and on reasonable doubt. It was important, that the jury should know whether the fact that the prosecutrix had had sexual intercourse with other men, if true, constituted a defense in this case, if the jury found from the evidence that defendant had sexual intercourse with her as charged in the information. The instruction in respect to above matter properly declared the law. State v. Allen, 174 Mo. 689, 74 S. W. 839; State v. George, 214 Mo. 262, 113 S. W. 1116; State v. Loness (Mo.) 238 S. W. loc. cit. 114.

In the Loness Case, defendant was convicted of statutory rape for having had sexual intercourse with a girl 14 years of age. At page 114 the law, in respect to the matter under consideration, was clearly stated as follows:

"In other words, it would not relieve defendant from the charge of rape, if a dozen other men had been guilty of the same offense with respect to the prosecutrix."

It is equally a well-settled law that, in a case of this character, the consent of the prosecutrix, if she did consent, constituted no defense in the case. State v. George, 214 Mo. 262, 113 S. W. 1116; State v. Wray, 109 Mo. 594, 19 S. W. 86. If a man has sexual intercourse with a girl other than his wife, under 16 years of age, he is guilty of statutory rape,...