State v. Bobbitt
| Decision Date | 19 March 1925 |
| Docket Number | 26029 |
| Citation | 270 S.W. 378 |
| Parties | STATE v. BOBBITT |
| Court | Missouri Supreme Court |
Jesse W. Barrett, Atty. Gen., and Harry L. Thomas, Sp. Asst. Atty Gen., for the State.
Defendant was convicted in Pettis county of the crime of seduction under promise of marriage, as defined by section 3259, R. S. 1919. He was sentenced upon the verdict to imprisonment in the state penitentiary for two years, and has appealed.
It was shown by the state and admitted by defendant that he had been engaged to marry Florence Osborne, the prosecutrix, for a period of about two years prior to the alleged seduction, and that several acts of sexual intercourse had occurred between them. Defendant had given her an engagement ring. She was 19 years old at the time of the trial in October, 1923, and defendant was then 28. She lived on a farm with her parents in Pettis county about 25 miles from Sedalia and attended high school in Sweet Springs. The marriage had been postponed at least twice because prosecutrix wanted to finish her school course.
The prosecutrix testified that the first act of sexual intercourse occurred at the home of her parents in June 1922, and that the act was repeated a number of times. She testified that defendant persuaded her to yield to him by telling her it was all right because they were to be married. She suspected she was pregnant, and about June 5, 1923, defendant took her to Sweet Springs to be examined by a physician, who confirmed her suspicions. They then arranged to be married on June 9th, which was Saturday. On that day defendant told prosecutrix that his widowed mother objected to the marriage and threatened to disinherit him if he married her. Later, defendant visited prosecutrix and accused her of prior intimacy with a dentist of Sweet Springs and refused to marry her. A child was born to prosecutrix a few weeks before the trial.
Defendant freely admitted his engagement to prosecutrix and intercourse with her several times. He fixed the time of the first act as about April 1, 1923, instead of the preceding June, as testified to by prosecutrix. His testimony tended to show that she took the initiative and not he, and that nothing was said about their marriage contract at that time, although they were then engaged. If the jury had believed defendant's testimony, as to the time of his first act, he could not have been the father of the child, which was born in full time. Defendant testified that he accused prosecutrix of prior intimacy with said dentist and that she admitted such act to him. He admitted that he was willing to marry prosecutrix until he learned that she had not been true to him.
A statement, signed by prosecutrix and witnessed by her father and mother and procured by some mysterious person, not identified in the record, was put in evidence by the defendant. Prosecutrix admitted signing same, but claimed that she did not read it or know that it contained an admission that she had sustained sexual relations with said dentist. She said the person who obtained the statement represented himself as an official appointed by the Governor of the state to check up prosecuting attorneys to see that they did their duty. Prosecutrix strenuously denied making any admission of improper relations with said dentist and denied the fact that such relations ever existed or that she ever had sexual relations with any man other than the defendant. In this she was corroborated by her father. As her signature to the paper was admitted by her, it was put in evidence without the production of the person who procured the same, and defendant offered no explanation as to how it was procured and left the identity and connection of such person with the ease as much of a mystery as the testimony of prosecutrix left it.
One Dr. Noel, of Sweet Springs, testified that he saw prosecutrix leave the office of said dentist several times when the door had been locked and upon one occasion opened the dentist's door without knocking and found him and the prosecutrix embracing and kissing each other. The dentist was called by the state and denied improper relations with the prosecutrix, or that he had ever kissed or embraced her, or that she had ever been in his office when the door was locked.
The inference desired by defendant to be drawn by the jury from the testimony in relation to sexual relations between prosecutrix and the dentist evidently was that the dentist was the author of the pregnancy of the prosecutrix and that she induced defendant to have sexual relations with her in order to make him think he was responsible for her condition.
There was evidence that defendant suggested sending prosecutrix to a maternity hospital in Kansas City, after the time when he accused her of improper relations with another, and also that he suggested that an abortion be performed upon her.
There was uncontradicted evidence that prosecutrix sustained a good reputation for virtue and chastity. It was drawn out from the witnesses used by the state that defendant's character was likewise good. Prosecutrix and defendant had been neighbors and had known each other for many years and had gone together for about two years before they became engaged.
We think the foregoing statement is sufficient for an understanding of the questions to be considered. Defendant was represented by able counsel below, but has not favored us with a brief in this court.
I. The first assignment of error in the motion for new trial is that there is no substantial evidence to support the verdict. We have sufficiently stated the evidence to demonstrate that this assignment is without merit. The evidence of the prosecutrix, with the corroborative admission of defendant as to his engagement to marry prosecutrix, made a case for the jury. The alleged improper relation with the dentist was a matter of defense. Outside of that, defendant did not attack the reputation of prosecutrix for virtue and chastity. Defendant's version of how their first sexual act occurred was likewise a matter of defense. This assignment must be overruled.
II. Error is assigned to the giving on the part of the state of instructions 1 to 6, inclusive. The learned Attorney General suggests, and an examination of the bill of exceptions discloses, that defendant saved no exceptions to the giving of such instructions. The assignment, therefore, is not before us for consideration. For the same reason, another assignment, that the instructions given do not properly state the law applicable to the case, is also not for consideration.
III. Error is assigned to the refusal of the court to give instruction No. 5, requested by defendant. Said instruction reads as follows:
'The court instructs the jury that if you believe and find from the evidence that Florence Osborne had sexual intercourse with any other man before defendant had sexual intercourse with her, then there is no seduction in this case, and you must find the defendant 'not guilty.' ''
This instruction did not fully state the law governing this class of cases, in that it omitted the element of...
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