State v. Bobbst
| Decision Date | 03 December 1895 |
| Citation | 32 S.W. 1149,131 Mo. 328 |
| Parties | The State v. Bobbst, Appellant |
| Court | Missouri Supreme Court |
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 the testimony of the defendant and his wife. The seventh, as to the credibility of the witnesses generally. The eighth, as to the presumption of innocence that attends the defendant, and defines a reasonable doubt. The ninth, as to what facts constituted the taking away of the prosecutrix under the law. The tenth, as to the form of the verdict. The defendant asked no instructions, and none were refused. The foregoing were all given by the court of its own motion, and when read together, following the now well settled law in this state, will be found to be exceedingly liberal to the defendant, and not subject to the criticism urged by him. State v. Johnson, 115 Mo. 480; State v. Richardson, 117 Mo. 586; State v. Gibson, 108 Mo. 575. (3) The only testimony offered by the defendant, and excluded by the court, was such as had a tendency or was offered for the purpose of establishing specific acts of unchastity and lewd and unladylike conduct on the part of the prosecutrix. It is now well settled in this state that specific acts of unchastity and conduct, however lewd on the part of the prosecutrix, are inadmissible in prosecutions for abduction. State v. Johnson, 115 Mo. 480; State v. Richardson, 117 Mo. 586; State v. Gibson, 108 Mo. 575. (4) The motion for a new trial in this case contains twenty-one allegations of error, a large number of which are untrue, unwarranted, and unsupported by the record. For instance, that the defendant was not awarded process for witnesses; that the sheriff refused to serve subpoenas; that since the verdict he has discovered new and material testimony, which is said to be shown by affidavits filed; because the court failed to give defendant a full panel of jurors from which to select, and because the jury were allowed to separate; all of which are untrue and unwarranted by the record. Allegations in motions for new trial do not prove themselves. State v. Foster, 115 Mo. 448. (5) The allegation that the court had no jurisdiction over the person of defendant is unsupported by the record. The verdict is sufficient and in the usual form, and the only remaining question for review is as to the sufficiency of the indictment, which is in the usual form and clearly charges the offense of which the defendant was charged and has been convicted. R. S. 1889, sec. 3834.
The defendant was indicted at the April term, 1893, of the circuit court of Montgomery county. There are two counts in the indictment; in the first he was charged with taking Martha B. Butler, a female child under the age of eighteen years, from the custody of her father, for the purpose of prostitution; in the second count he is charged with having taken her on October 12, 1892, from the custody of her father, for the purpose of concubinage and cohabitation with him as man and wife without authority of law and without legal marriage, against the peace and dignity of the state. He was acquitted on the first count and convicted on the second. He obtained various continuances and a change of venue to Audrain county. The trial was had at the September adjourned term, 1894. No reason appears why this transcript was not filed in this court until July 12, 1895.
The attention of the various circuit and criminal courts is hereby called to the wholly inexcusable delays that are constantly occurring by reason of the failure to certify these cases promptly to this court, with the hope that they will see to it that appeals are promptly certified.
The record substantially shows that Martha B. Butler was born on the nineteenth of November, 1875, and during September and October, 1892, and at all times prior thereto, she resided with her father, Isaac Butler, and mother, in Montgomery county, Missouri; that she had a sister by the name of Mrs. Switzer living about a mile from the home of her father; that during September her father allowed her to go to the house of her sister temporarily to assist her in cooking for some harvest hands; that while at the home of her sister the defendant persuaded and induced her to leave the residence of her sister and to accompany him, defendant taking with him a wagon and buggy; that they started together, and drove from the home of the sister, first to Wellsville, Missouri, then to Mexico, Boonville, and from there to Guthrie, Oklahoma. It is shown by the testimony that at Mexico they were joined by another female, a Miss Outenwreath; that the defendant cohabited and had intercourse with Miss Butler at divers points along the road from Montgomery county to Oklahoma; that in Oklahoma, where she remained some months, and until her father sent her money on which to return home, they lived and cohabited together.
The defenses offered in this case are the bad reputation of the prosecutrix, and that when they reached Wellsville, Missouri, en route to Oklahoma, the defendant urged and insisted that the prosecutrix return home.
It is very evident that prior to this time her ruin had been accomplished. It is also in evidence that the father of the prosecutrix made every effort possible to ascertain the whereabouts of his daughter, in order that he might compel her to return home, and that as soon as he learned of her whereabouts he sent her money on which to return. It is...
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