State v. Brown

• Decision Date: 18 February 1908
• Citation: 107 S.W. 1068,209 Mo. 413
• Parties: STATE v. BROWN.
• Court: Missouri Supreme Court

107 S.W. 1068

209 Mo. 413

STATE v. BROWN.

Supreme Court of Missouri, Division No. 2.

February 18, 1908.

1. CRIMINAL LAW — APPEAL — RESERVATION OF GROUNDS — MOTION FOR NEW TRIAL.

Alleged error in ruling on the competency of a witness is not subject to review, where not laid as a ground for new trial in the motion therefor.

2. SAME — OBJECTIONS TO EVIDENCE — SUFFICIENCY.

In a prosecution for incest, it was not error to admit evidence of previous acts over a general objection, such objection being of no effect.

3. INCEST — INDICTMENT — ISSUES AND PROOF.

An allegation in an information charging defendant with incest with his daughter that he was a single man at the time alleged was surplusage, and not necessary to be proved.

4. CRIMINAL LAW — APPEAL — RESERVATION OF GROUNDS — MOTION FOR NEW TRIAL.

An alleged error in the giving of an instruction will not be reviewed, where the exception thereto was not preserved in the motion for a new trial.

5. SAME — ESTOPPEL TO ALLEGE ERROR.

Defendant cannot complain of an instruction given at his request.

6. INCEST — EVIDENCE — SUFFICIENCY.

In a prosecution for incest, evidence considered and held insufficient to support a conviction.

Appeal from Circuit Court, Crawford County; L. B. Woodside, Judge.

A. S. Brown was convicted of the crime of incest, and appeals. Reversed.

Harrison & Farris, for appellant. The Attorney General and N. T. Gentry, for the State.

BURGESS, J.

The defendant, at the June term, 1907, of the circuit court of Crawford county, was convicted of the crime of incest, under an information filed by the prosecuting attorney of said county charging him with the commission of said offense with his daughter Laura Brown on the 1st day of April, 1907. His punishment was assessed at three years in the penitentiary. After filing unsuccessful motions for a new trial and in arrest, defendant appealed.

The evidence on the part of the state was to the following effect: The defendant had been divorced from his wife some 12 years, and was living with his children, three sons and two daughters, in a one-room log house a few miles north of Bourbon, in Crawford county, Mo. In this single room the whole family of six persons lived, cooked, ate, and slept. Laura, the defendant's oldest daughter, was 17 years of age and unmarried at the time of the commission of the alleged offense. The two oldest sons, aged 21 and 20 years respectively, worked away from home occasionally, but at the time in question they were living at home. The prosecuting witness, Laura Brown, testified that the defendant had sexual intercourse with her in the house some time in July, 1906, and that the commerce was indulged in and continued from the time she was 11 years of age. She stated that she knew it was wrong, that the neighbors and officers would have protected her had she made known the facts, and that the reason why she did not tell anybody was that her father did not want her to tell. She further testified that her father had been strict with her, and punished her; that she wanted to get from under his care and control; that he had punished her a day or two before she made formal complaint against him; and that she and her brother John had planned to take charge of and run the place after her father had been arrested and put in jail. She also testified that her father punished her for alleged misconduct with a man named Cain, and that she went with her father to a justice of the peace for the purpose of securing a warrant for the arrest of Cain on a charge of seduction, under promise of marriage; but she denied having misconducted herself with Cain or with other young men. The prosecutrix was corroborated by her little brother Josh, 11 years of age, who testified that on the afternoon of some day in July, 1906, while outside the house playing with his little sister, he peeped through a crack in the log wall of the house and saw the defendant and his sister, the prosecuting witness, lying on the bed in the performance of the sexual act. John Brown, the second son, about 20 years of age, testified that the family slept upon beds laid on the floor; that his father and two sisters slept in one bed, and he and his two brothers in another; and that part of the time the youngest brother slept with his father.

The testimony on the part of the defendant tended to prove that a short time prior to the issuance of the warrant against defendant the latter, in company with his daughter Laura, had applied to J. M. Johnson, a justice of the peace, for a warrant against one Cain on the ground of seduction, and that the justice asked the prosecuting witness if she had ever had intercourse with parties other than Cain, and she admitted that she had intercourse with the three Jost boys, Charles Hulsey, a deputy constable who assisted in the arrest of the defendant, testified that at the time of the arrest he asked the prosecuting witness why she wanted to have her father arrested, and that she replied that it was because he whipped her on account of her intimacy with one Cain; that she further told witness, in reply to questions, that she had had intercourse with Cain about seven times. Witness further testified that afterwards, in a store in Bourbon, the prosecuting witness acknowledged to him that she had been intimate with a young man who worked in the store. All of these statements were denied by the prosecuting witness upon cross-examination. The defendant testified on his own behalf that he was 52 years of age, and had been engaged in farming near Bourbon, in Crawford county, since 1893; that his daughter admitted to him her intimacy with Cain, and that he had taken steps for the apprehension and prosecution of said Cain; that the day before he (the defendant) was placed under arrest, he went to Sullivan in an endeavor to locate the man Cain. Mr. Harrison, counsel for the defendant, testified as to the diligence used and the efforts made by him to locate Cain and secure his attendance as a witness at the trial of this case. Several of the more prominent citizens of the county testified as to the general reputation of the defendant for truth, honesty, and morals; the general tenor of their testimony being that they had never heard his reputation questioned.

The defendant contends that the court, in permitting witness Joshua Brown, over the objection of the defendant, to testify, committed error, on the ground that it was shown by the examination of the witness touching his...