State v. Brandenburg

• Decision Date: 21 November 1893
• Citation: 23 S.W. 1080,118 Mo. 181
• Parties: STATE v. BRANDENBURG.
• Court: Missouri Supreme Court

23 S.W. 1080

118 Mo. 181

STATE v. BRANDENBURG.

Supreme Court of Missouri, Division No. 2.

November 21, 1893.

CRIMINAL LAW — SEDUCTION — EVIDENCE — INSTRUCTIONS — ARGUMENT OF COUNSEL.

1. In a prosecution under Rev. St. § 3486, for seducing an unmarried woman under 18 years of age, under promise of marriage, it is not error to refuse to allow defendant to answer a question as to whether it was his honest intention to marry the prosecutrix, and if he is now ready to do so, or to instruct as to defendant's good faith in making the promise to marry, as, by plain provision of the statute, an offer to marry is no bar to the prosecution.

2. Testimony that the witness is acquainted with prosecutrix, and has never heard anything against her character, is competent evidence of her character, and he need not base

his knowledge on what is "generally said" of her.

3. Where defendant's testimony is immaterial, it is not necessary to instruct the jury as to his competency.

4. Where, in a prosecution for seduction, the prosecuting attorney, in argument to the jury, remarked that the return of the writs by the officers showed that defendant ran away, and skipped out, and the prosecuting witness had to work in a factory to support herself and child, and the court rebuked him, there is no error, as it will be presumed that the rebuke warned the jury to disregard the statement.

Appeal from circuit court, Montgomery county; E. M. Hughes, Judge.

Isaac Brandenburg was convicted of seduction, and appeals. Affirmed.

Edmonston & Cullen, for appellant. R. F. Walker, Atty. Gen., for the State.

BURGESS, J.

The defendant was convicted in the circuit court of Montgomery county for seducing and debauching one Mattie Owens, an unmarried female of good repute, and under 18 years of age. The case is in this court on his appeal. The facts developed by the testimony are that during December, 1890, and January, 1891, defendant boarded at the home of the prosecutrix, at Danville, Montgomery county, Mo. That defendant and the prosecutrix were engaged to be married. The prosecutrix testified that, on December 26th, defendant asked her to have sexual intercourse with him. She replied, "It was not right," when he said, "It wouldn't be no harm. We are engaged," and she then consented. That they had sexual intercourse twice during January, 1891, and each time they had about the same conversation. That the parents of the prosecutrix refused to permit defendant to come to the home of the prosecutrix, and refused to permit her to marry defendant. That defendant always expressed a willingness to marry her, and never refused. The mother of prosecutrix testified that she forbad her daughter marrying defendant, and ordered him not to come on the place again. That she told her daughter she had rather see her dead than marry defendant. That she and her husband offered to settle the case for less than $100. Letters written by defendant to prosecutrix were identified, and read in evidence, in which defendant renewed his offer to marry her. The testimony gives the prosecutrix a good reputation for chastity and virtue.

The indictment is well enough, and good under the section of the statute under which it was drawn, containing, as it does, all necessary averments. State v. Eckler, 106 Mo. 585, 17 S. W. Rep. 814; State v. Primm, 98 Mo. 368, 11 S. W. Rep. 732.

It is contended by counsel for defendant that the court committed error in allowing the witnesses MacMahan and Bellamy to testify to the reputation of the prosecutrix, because they were not qualified to do so. This contention is not sustained by the record, which discloses the fact that each one of these witnesses testified that he was acquainted with Mattie Owens, — one of them, (Bellamy,) that she went to school to him in 1890, — and they both testified that they had never heard anything against her. In passing upon a similar question by this court, Sherwood, J., said: "That reputation may, with justice, well be called good, which no slander has ever ventured to even so much as question. A blameless life, oftentimes, though not always, gives origin to such a reputation. But when it can be said of a man, by those well acquainted with him, that they never heard his reputation as to truth and morals discussed, denied, or doubted, it is equivalent to passing upon him the highest encomium. The authorities...