State v. Bruton

• Decision Date: 09 December 1913
• Citation: 161 S.W. 751,253 Mo. 361
• Parties: STATE v. BRUTON.
• Court: Missouri Supreme Court

161 S.W. 751

253 Mo. 361

STATE v. BRUTON.

Supreme Court of Missouri, Division No. 2.

December 9, 1913.

1. SEDUCTION (§ 46)—EVIDENCE—CORROBORATION.

Where, on a trial for seduction under promise of marriage, the prosecutrix testified that she and accused became engaged in May, 1910, a letter written by accused to her in July following, wherein he asked her if she would marry, did not alone corroborate the promise of marriage, essential under Rev. St. 1909, § 5235, to support a conviction.

2. SEDUCTION (§ 46)—EVIDENCE—CORROBORATIVE EVIDENCE.

Evidence corroborative of promise of marriage, required by Rev. St. 1909, § 5235, to sustain a conviction for seduction under promise of marriage, need not be such as, standing by itself, will prove the fact, but any material circumstance shown by other witnesses, corroborating the testimony of the prosecutrix as to the promise of marriage, is sufficient.

3. CRIMINAL LAW (§ 814)—EVIDENCE—INSTRUCTIONS.

Where, on a trial for seduction, prosecutrix testified that she was seduced August 3d while taking a buggy ride with accused, who testified that he was only in her company once in December following, and again in April following, and that on the latter occasion a third person accompanied them, the trial court properly charged on alibi.

4. CRIMINAL LAW (§ 829)—INSTRUCTIONS— REFUSAL OF INSTRUCTIONS COVERED BY CHARGE GIVEN.

It is not error to refuse requested instructions covered by other instructions asked by defendant or given on the court's own motion.

5. CRIMINAL LAW (§ 403)—EVIDENCE—PEDIGREE.

Where entries in a family Bible, showing the date of the birth of prosecutrix, were originally made by the deceased mother of prosecutrix, and, after the Bible becoming so worn as to make it advisable to copy the entries on a sheet of paper, which was done in the presence of the deceased mother and other members of the family, the copy was properly received in evidence on a trial of her seduction to establish her age.

6. CRIMINAL LAW (§ 1169)—HARMLESS ERROR —ERRONEOUS ADMISSION OF EVIDENCE.

The error, if any, in admitting evidence, which is merely cumulative of a necessary but uncontradicted fact established by competent proof, is harmless.

7. SEDUCTION (§ 44)—EVIDENCE—ADMISSIBILITY.

On a trial for seduction under promise of marriage, accused may show that, during the period fixed by prosecutrix as the period during which he kept company with her, he kept company with other girls when limited to the particular dates fixed by the prosecutrix as the dates accused was in her company.

Appeal from Criminal Court, Greene County; Alfred Page, Judge.

Ben Bruton was convicted of crime, and he appeals. Reversed and remanded for new trial.

Defendant was tried in the criminal court of Greene county on July 23, 1912, upon an information charging him with seduction under promise of marriage, for that it was averred he had seduced and debauched one Susan Reynolds, an unmarried female of good repute, under the age of 21 years. He was found guilty by the jury, which assessed his punishment at a fine of $300 and imprisonment in the county jail for a term of 180 days. From this verdict and the judgment following same, he has appealed to this court.

The testimony in the case tends to show that defendant and prosecutrix had known one another nearly all of their lives; that they had lived for years near one another in Webster county, where they were both reared, though prosecutrix had been, prior to the seduction charged, living for a number of years with her parents in Greene county. Apparently defendant himself was farming in Greene county at the time of the seduction, but, since the offense was committed in Greene county, neither of these facts is of much moment.

The testimony is somewhat voluminous, and in many respects contradictory. That of the prosecutrix tends to show that defendant began keeping company with her in the month of February, 1909, and continued to wait on her with much of assiduity until some time in April, 1911. She avers that in the month of May, 1910 (precise date or part of month not given), while walking home from church with defendant, that the latter asked her to marry him, and that she consented. It seems from prosecutrix's testimony that her father was opposed to her receiving the attentions of defendant, and would not permit him to visit her at her home. The details of this opposition or the reasons for it are not given, and the facts appear but obscurely and vaguely in the record. The prosecutrix states that the promise of defendant to marry her was conditioned upon her leaving home, which she did on June 22, 1910, and went to Kansas City, Kan., where she remained about a month, living with her half-brother. While at Kansas City, Kan., defendant wrote prosecutrix a letter, which she received some time in the early days of July, and which letter we print in full in the opinion herein, as it indubitably is the only spark of corroboration in the entire record. Upon the return of prosecutrix to her home, the attentions to her of defendant, she says, were renewed, and on August 3, 1910, while ostensibly on the way to attend church at Rogersville, the defendant, protesting the while to use her own words, "that he loved her better than any girl he ever kept company with," accomplished her undoing. The intercourse thus began continued until some time in March of the following year, when she became pregnant, subsequently giving birth to a child on December 4, 1911. About the month of April, 1911, when she became aware of her condition, she confessed it to her sister-in-law, but, so far as the record shows, her confession was confined to her condition of pregnancy, and gave no hint of the making or of a reliance upon the alleged promise of marriage, which she now avers caused her fall. Prosecutrix, for a part of the time covered by the record, seems to have been employed at various places in the neighborhood as a domestic servant, and for some three weeks in the month of October, 1910, performed such service for one Henry Bruton, the brother of defendant, at whose home at the same time defendant seems to have been staying.

Many witnesses were called for the state, who testified as to the good repute in the community of the prosecutrix prior to her downfall. Six of these witnesses for the state, for the most part her neighbors and acquaintances, out of nine who testified as to the below fact, say that they never saw defendant in company with her. The other three say that they never saw defendant with her but once or twice.

Defendant, on his part, proved for himself, a good reputation generally, and for truth and veracity, and touching the precise failing involved in this inquiry. Testifying for himself, he denied the promise of marriage. Touching whether he had had sexual intercourse with prosecutrix, he refrained from committing himself, passing this question, like the Levite, "on the other side." He denied having paid court to prosecutrix, and averred that he had not accompanied her or "gone with her in his whole life" but upon two occasions; once to a dance in the vicinity, and on the other occasion he had driven with her in a buggy from the house of a neighbor where she was marooned by a rainstorm to the place at which she was then staying, and that, upon the latter trip, another girl was in their company. In all of this his own witnesses corroborate him.

At the conclusion of all the evidence in the case, defendant offered an instruction in the nature of a demurrer to the evidence, and requested the court to give the same. This the court refused to do, proper exception was taken and saved, and this point is the contention which learned counsel have most strenuously urged upon us. Other alleged errors are said to have occurred upon the trial. These together with such other facts as may be necessary to be stated in order that a full understanding of the contentions made and the points ruled may be obtained, will be set out in the opinion, if such setting forth shall become necessary.

J. J. Gideon, J. C. West, and Waldo G. Gideon, all of Springfield, for appellant. John T. Barker, Atty. Gen., and Thomas J. Higgs, Asst. Atty. Gen., for the State.

FARIS, J. (after stating the facts as above).

I. At the close of the case, when all of the testimony was in on both sides, defendant offered an instruction in the nature of a demurrer to the evidence. This instruction the court refused to give, which refusal, as we have stated, is the basis of defendant's most strenuous contention here, and presents a serious question in the case. Assuredly there is evidence enough of facts in the record, for the testimony of the prosecutrix furnishes that, but is there enough of corroboration of prosecutrix's testimony? Let up look fairly over the facts shown in evidence.

Prosecutrix says that defendant began keeping company with her in February, 1909, and continued to do so till a period long subsequent to the date at which she says she was seduced; that defendant went to dances with her; that he accompanied her home from church and drove about the country in a buggy with her, but that he never came to her father's house to visit her, because her father objected to defendant's paying attention to her. In this she is not corroborated by the witnesses for the state, for six of them, her neighbors and acquaintances for the most part, say they never saw the defendant with her or in her company anywhere. The defendant says he never went with her but twice, once he accompanied her from a dance to the place at which she was staying, and once, at the suggestion of a third person, because of a rainstorm in which prosecutrix was caught, drove with her and another girl in a buggy from the house of a friend to the place where prosecutrix was working. Three other witnesses for the state say that they never saw defendant with prosecutrix but once or twice. During the period embraced in this...