State v. Cox

• Decision Date: 05 June 1924
• Docket Number: No. 25355.,25355.
• Parties: STATE v. COX.
• Court: Missouri Supreme Court

263 S.W. 215

STATE v. COX.

No. 25355.

Supreme Court of Missouri, Division No. 2.

June 5, 1924.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

J. Madison Cox was convicted of having carnal knowledge of a female under 18 years of age, and he appeals. Reversed and remanded.

Ferris & Rosskopf and George O. Durham, all of St. Louis, for appellant.

Jesse W. Barrett, Atty. Gen., and Wm. L. Vandeventer, Sp. Asst. Atty. Gen., for the State.

Statement.

RAILEY, C.

On November 22, 1922, an information was filed in the circuit court of the city of St. Louis, Mo., against defendant Cox. Omitting caption and verification, it reads as follows:

"Albert L. Schweitzer, assistant circuit attorney, in and for the city of St. Louis aforesaid, within and for the body of the city of St. Louis, on behalf of the state of Missouri, upon his official oath, information makes as follows:

"That J. Madison Cox on the 30th day of June, in the year of our Lord one thousand nine hundred and twenty-two, at the city of St. Louis aforesaid, the said J. Madison Cox being then and there a person over the age of 17 years, did then and there unlawfully and feloniously have carnal knowledge of the body of one Mildred Dietz, and that she, the said Mildred Dietz, was then and there an unmarried female, of previously chaste character, under 18 and over 16 years of age, to wit, of the age of 16 years, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state. "Albert L. Schweitzer,

                            "Assistant Circuit Attorney."
                

Defendant waived formal arraignment, and entered his plea of not guilty. After a continuance and change of venue were granted him, the cause was transferred to Division No. 11 of said court, where it was tried before a jury on March 6, 1923, and the following verdict returned:

"We, the jury in the above-entitled causes find the defendant guilty of felonious carnal knowledge, as charged in the information, and assess the punishment at 6 months in the city jail, and $500 fine.

                               "Frank P. Bruck, Foreman."
                

Motions for a new trial and in arrest of judgment were filed and overruled. Thereafter judgment was rendered, sentence pronounced on defendant in conformity to the terms of the verdict, and, on the same day, an appeal was allowed defendant to this court.

The evidence on behalf of the state tended to show that appellant was managing a dancing school in said city of St. Louis, and that the prosecutrix, Mildred Dietz, was one of his pupils; that she had purchased a ticket and was taking dancing lessons from appellant at the time of the alleged crime; that appellant took prosecutrix into the cloak room on the second floor of the dance hall and had sexual intercourse with her on June 20, 1022; that these acts were continued six or seven times; that prosecutrix was of previous chaste character, unmarried, and on said dates between the ages of 16 and. 18 years; that she never had sexual intercourse with any man prior to the above occurrence; that her general reputation for chastity, virtue, and morality was good in the neighborhood where she lived; that a physician, from his examination, testified that she was not a virgin, and had sexual intercourse with some one.

The appellant denied all acts of intercourse, admitted that prosecutrix was one of his pupils, and had taken instructions under him, but denied that he ever at any time made any improper advances toward her. Evidence was also offered in behalf of defendant, tending to show that on said 20th day of June, he did not leave the dance floor with prosecutrix. Ills general reputation for chastity, virtue, and morality in the neighborhood where he lived was good.

Over the objection of appellant Frances Tebeau, a witness for the state, was permitted to testify that prior to the alleged crime in question she had been working for appellant: that during that time appellant had sexual intercourse with her, and that as a result a child was born. This testimony was admitted for the purpose of affecting the credibility of appellant's testimony. The court in its instructions called attention to the testimony of Frances Tebeau, and limited it as to credibility only, and not as any proof of the crime charged.

The instructions and rulings of the court will be considered later.

Opinion.

I. Appellant in legal effect contends that the testimony prosecutrix is without corroboration or support; that it is of a vague, uncertain, unnatural, unbelievable nature, and that the jury must have been actuated by the common prejudice against men accused of crimes against women.

It is evident that in cases of this character, where no one is expected to be present but the parties in interest, it is not necessary that the prosecutrix should be corroborated as to the act of sexual intercourse, in making out a case against the defendant under the statute. State v. Marcks, 140 Mo. 656, loc. cit. 660, 661, 41 S. W. 973, 43 S. W. 1095; State v. Day, 188 Mo. loc. cit. 364, 365, 87 S. W. 465; State v. Dilts, 191 Mo. loc. cit. 675, 90 S. W. 782; State v. Welch, 191 Mo. loc. cit. 185, 186, 89 S. W. 945, 4 Ann. Cas. 681; State v. Tevis, 234 Mo. 276, loc. cit. 284, 36 S. W. 339; State v. Stackhouse, 242 Mo. loc. cit. 449, 146 S. W. 1151; State v. Hughes, 258 Mo. loc. cit. 272, 167 S. W. 529; State v. Burgess, 259 Mo. loc. cit. 396, 168 S. W. 740; State v. Manuel, 203 Mo. loc. cit. 674, 675, 173 S. W. loc. cit. 1048; State v. Cook (Mo. Sup.) 207 S. W. loc. cit. 832; State v. Jenkins (Mo. Sup.) 225 S. W. Ioc. cit. 989; State v. Loness (Mo. Sup.) 238 S. W. loc. cit. 113; State v. Luckett (Mo. Sup.) 246 S. W. 881; State v. Ansel (Mo. Sup.) 256 S. W. 762; State v. Hewitt (Mo. Sup.) 259 S. W. loc. cit. 778.

The prosecutrix was corroborated, however, as to some of the material facts in the case. The uncontradicted testimony shows that appellant was the manager of a dancing school in St. Louis, and that prosecutrix was his pupil; that she was taking lessons from him on the very day of the alleged crime; that there was a second floor to the building, and a cloak or check room on the second floor; that a door led up from the first floor to the second, where the cloak room was located; that there was a counter in this cloak room, and on which prosecutrix claimed defendant had sexual intercourse with her. In fact she was corroborated by defendant as to nearly every detail, except as to the actual intercourse. The testimony of prosecutrix contains every essential element of the crime charged against defendant. His denial of the sexual intercourse presented an issue of fact for the consideration of the jury. She furnished clear and substantial testimony as to defendant's guilt, if the jury believed her testimony to be true. It was peculiarly the province of the jury to pass upon the conflicting testimony of prosecutrix and defendant as well as upon all the other testimony in the case. The parties in interest and the witnesses were before the trial court, and the latter, after a full hearing of the case, refused to disturb the verdict of the jury. In view of the foregoing we are of the opinion that the state was entitled to go to the jury on the evidence herein. The above assignment is accordingly overruled.

II. The court did not err in refusing to allow defendant to cross-examine prosecutrix as to alleged conflicting statements made by her in the juvenile court to affect her credibility and to lay grounds for impeachment.

In appellant's statement of the case it is said:

"The prosecutrix never was in the company of the defendant any more after June 30th, and never told any one of the affair until she was taken into custody on September 13, 1922, for some delinquency, the exact nature of which does not appear.

"It appeared she had a hearing of some kind in the juvenile court."

Turning to section 2591, R. S. 1919, relating to children under 17 years of age within the jurisdiction of the juvenile court, we find that said section, after relating numerous delinquencies over which said court had jurisdiction, contains the following:

"Any child committing any of the acts here-in mentioned shall be deemed a juvenile delinquent person, and shall be proceeded against as such in the manner hereinafter provided. Any disposition of any delinquent child under this article, or any evidence given in such cases shall not in any civil, criminal or other cause or proceeding whatever in any court be lawful or proper evidence against such child for any pie pose whatever, except in subsequent cases against the scone child under this article." (Italics ours.)

It is not necessary to speculate here as to the motives which impelled the Legislature to adopt the above law. The ruling of the court in respect to above assignment of error is in full accord with the provisions of said section.

(a) The prosecutrix denied that she testified in the juvenile court the act of sexual intercourse with defendant occurred down stairs. It does not appear from the record, that any testimony was offered showing that she had made such statements, even if the latter were competent under said statute. Hence there would be no sufficient basis upon which prejudicial error might be adjudged. State v. Osborn (Mo. App.) 240 S. W. 821; State v. Roberts. 280 Mo. 678, 217 S. W. 988; State v. Kozlickie, 241 Mo. loc. cit. 307, 145 S. W. 97.

III. It is contended that the court erred in refusing to permit defendant to cross-examine prosecutrix as to the exact date of the first intercourse with defendant in order to show that she was not virtuous on June 20, 1922, the date fixed by her as to the first sexual intercourse with defendant. The prosecutrix testified that defendant was the first person who ever had sexual intercourse with her, and that this occurred during the month of June, 1922, while she was taking dancing lessons from defendant.

The latter did not offer to show by the...