State v. Bullington

• Decision Date: 05 June 1925
• Docket Number: 26061
• Citation: 274 S.W. 18
• Parties: STATE v. BULLINGTON
• Court: Missouri Supreme Court

274 S.W. 18

STATE v. BULLINGTON

No. 26061

Supreme Court of Missouri, Second Division

June 5, 1925

Hall & Bradley, of Kennett, for appellant.

Robert W. Otto, Atty. Gen., and J. Henry Caruthers, Asst. Atty Gen., for the State.

OPINION

HIGBEE, C.

The information charges the defendant with statutory rape, in that, on or about July 25, 1923, he carnally knew one Alma Nunnery, a female child under the age of 16 years. The defendant entered a plea of not guilty, was tried, found guilty, and sentenced for a term of 2 years in the penitentiary.

1. The Attorney General insists that the bill of exceptions cannot be considered because the record proper does not show that it was filed, citing section 4106, R. S. 1919, and State v Little (Mo. Sup.) 248 S.W. 926. The bill of exceptions is indorsed 'Filed June 2d, 1924. [Signed] Birt F. Bryant Clerk of Circuit Court.' If filed in term time, the filing must be shown by a record entry; if in vacation, by the clerk's indorsement. There is no statute requiring the clerk to make an entry on the court records of the filing of a bill of exceptions in vacation. On this record it must be assumed that the bill was filed in vacation, and that the clerk's indorsement was regular.

2. The prosecutrix testified that she was 14 years of age on January 24, 1923; that the defendant had sexual intercourse with her some time about the middle of July, 1923. Over the objection and exception of defendant's counsel, she was permitted to testify that the defendant had sexual intercourse with her in the month of July and again repeated the act in the month of August following the first act. In State v. Cason (Mo. Sup.) 252 S.W. 688, after an elaborate examination of authorities, Judge White quoted approvingly from People v. Thompson, 212 N.Y. 251, 106 N.E. 78, L. R. A. 1915D, 236, Ann. Cas. 1915D, 162, as follows:

'That in prosecutions for adultery, seduction, statutory rape upon one under the age of consent, * * * acts of sexual intercourse between the parties prior to the offense charged in the indictment may be given in evidence.'

And in State v. Guye, 299 Mo. 348, 367, 252 S.W. 955, 959, in an opinion by Judge Railey, citing the previous rulings of this court, it was said:

'That subsequent acts of alleged statutory rape are incompetent as evidence and should be excluded.'

The court therefore erred in admitting evidence of subsequent acts of sexual commerce between ...