State v. Cook

• Decision Date: 23 December 1918
• Docket Number: No. 20992.,20992.
• Citation: 207 S.W. 831
• Parties: STATE v. COOK.
• Court: Missouri Supreme Court

207 S.W. 831

STATE v. COOK.

No. 20992.

Supreme Court of Missouri, Division No. 2.

December 23, 1918.

Appeal from Circuit Court, Bates County; C. A. Calvird, Judge.

Harry Cook was convicted of the crime of having had carnal knowledge of a female between the ages of 15 and 18 years, and appeals. Affirmed.

Defendant appeals from a conviction under the provisions of section 4472, R. S. 1909, as amended by Laws of Missouri 1913, p. 219, for that, as it is averred, he had carnal knowledge of a female who was between the ages of 15 and 18 years.

Prosecutrix resided in the country near the small village of Amsterdam. Defendant lived over the state line, in Kansas, some four or five miles from Amsterdam. Prosecutrix first met defendant in September, 1915, at which time, and until about the end of the year, he "kept company" with an elder sister, who married another man in December, 1915. Thereafter, beginning in January, 1916, defendant began to seek the company of prosecutrix. The record is vague as to the extent of his attentions; but it does not disclose that his suit was unduly ardent. After going with prosecutrix a while in January, 1916, defendant relaxed his attentions for a time. He again sought her company about the latter end of March, and about the night of the 29th day of the latter month, while defendant and prosecutrix were riding to her home in a buggy, and about 10 o'clock at night, in the open prairie, on a public road, around 100 yards from an inhabited residence, he solicited and had sexual intercourse with her. Three days thereafter, and on April 1st, another act of intercourse occurred between these parties, and on April 2d a third. These three acts constituted the whole of the sexual access of defendant to prosecutrix. All of them occurred while they were riding in a buggy along the public road. As a result of this intercourse prosecutrix became pregnant, and gave birth to a child on December 25, 1916. At the time of the first sexual access prosecutrix was some three months less than 18 years of age.

Prosecutrix, both immediately before and after and during the time she was keeping company with the defendant, was also keeping company with other young men of the neighborhood. After the act of April 2d with defendant she quit going with him, and though shortly thereafter she discovered that she was pregnant, she never advised the defendant of the fact at any time. She did not accuse defendant till some three or four days after her delivery. In this sketch of the facts we follow the testimony of the prosecutrix.

Her previous chaste character was shown by her own testimony, wherein she averred that she had never at any time had intercourse with any man except the defendant, and by evidence of divers neighbors and acquaintances that her reputation for chastity before the birth of the child was good.

On defendant's part there was offered evidence of prior specific acts of intercourse with one Pohlman, of her admissions to her sister in a letter—unfortunately lost at the time of the trial—that her own father was the author of her condition. Of the contents of this letter both her sister and her brothers-in-law gave testimony. In fairness it may be said that the brother-in-law was confessedly unfriendly to prosecutrix's father and her sister was estranged. Defendant relied upon his own denial of guilt, an alibi directed toward the several specific dates of the acts as prosecutrix detailed them, and upon his own good reputation. The jury nevertheless found him guilty, and the court fixed his punishment at a fine of $300.

Further facts will be set forth in the course of the expression of our views upon the points urged for reversal.

Silvers & Silvers, of Kansas City, for appellant.

Frank W. McAllister, Atty. Gen. (Thos. J. Cole, of Joplin, of counsel), for the State.

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

I. Defendant complains with much of strenuousness and ability of the alleged insufficiency of the evidence to sustain the verdict of the triers of fact, for that, as his learned counsel urges, (a) there is no sufficient proof of defendant's sexual access to prosecutrix, and (b) that the proof discloses the lack of prior chastity of the prosecutrix. Examining these contentions as they are presented, it may be said that upon the phase (a) of sexual access the law does not require any corroboration of the testimony of the prosecutrix. State v. Day, 188 Mo. loc. cit. 364, 87 S. W. 465; State v. Marcks, 140 Mo. 664, 41 S. W. 973, 43 S. W. 1095. She testifies that, being virgo intacta before the initial act, she was guilty of three separate acts of sexual intercourse with the defendant. So while the evidence as a whole, as we read it upon the cold record, does not create an abiding conviction of defendant's participation, nevertheless this question was one to be resolved by the jury. They have resolved it against defendant's contentions upon sufficient evidence, of the credibility of which they were the sole judges. Therefore, whatever may be our own doubts, we may not interfere.

Upon the phase (b) of the alleged lack of prior chastity in the prosecutrix it it likewise enough to say that, while there was strong countervailing evidence offered by the defendant against the prima facie affirmative proof of this fact offered by the state, the contradiction thus produced was for the jury.

It is only when there is a total failure of substantial evidence of the elements, or some one element, of an offense, that we are permitted as an appellate court to interfere on this ground with the verdict of a jury. The facts regarded, we are constrained to disallow this contention.

II. Complaint is also made that the state was permitted to offer testimony of the "previous good reputation" of the prosecutrix for chastity; whereas, it is strenuously urged, character as to chastity, and not mere reputation therefor, is involved under our statute. Sec. 4472, R. S. 1909; Laws 1913, p. 219. The premise upon which this contention is bottomed is well taken, but the conclusion which the defendant draws therefrom is erroneous. Our statute...