State v. Drummins
| Decision Date | 03 June 1918 |
| Citation | 204 S.W. 271,274 Mo. 632 |
| Parties | THE STATE v. LAWRENCE DRUMMINS, Appellant |
| Court | Missouri Supreme Court |
Appeal from Worth Circuit Court. -- Hon. Charles H. Mayer, Judge.
Reversed.
John Ewing, Du Bois & Miller, Kelso & Kelso, for appellant.
(1) The court erred in refusing the instruction asked by defendant in the nature of a demurrer. (a) Prosecutrix's evidence shows she was not the pure chaste girl of good repute required to convict defendant. For the defendant to be guilty of the offense charged, prosecutrix must have been of good repute. State v. Howard, 264 Mo. 392; State v Patterson, 88 Mo. 93; State v. Fogg, 206 Mo 712; State v. McMahon, 234 Mo. 614; State v Schenk, 238 Mo. 457; State v. Henderson, 243 Mo. 503. (b) The alleged marriage contract is not sufficiently corroborated to convict defendant. The promise of marriage contemplated by the seduction statute is an unconditioned promise of marriage, under R. S. 1909, Section 5235, which in trials for seduction under promise of marriage requires that the evidence of the plaintiff as to such promise be corroborated to the same extent required of the principal witness in perjury. State v. Spears, 183 S.W. 313; State v. Thomas, 231 Mo. 41; State v. Teeter, 239 Mo. 481; State v. Long, 257 Mo. 207. The promise of marriage must precede the seduction. State v. Eisenhour, 132 Mo. 140; State v. Evans, 267 Mo. 646. (2) Defendant having admitted the sexual intercourse with prosecutrix, all testimony admitted and argument of counsel permitted by the court concerning the pregnancy of prosecutrix or the child born was prejudicial to defendant, incensed the jury against him and was error. State v. Palmberg, 199 Mo. 233; State v. Fogg, 206 Mo. 696; People v. Kearney, 17 N.E. 736. (3) The court erred in refusing to permit the defendant to crossexamine his witnesses, and to show that their testimony was at variance with the facts and with what they had recently told counsel for defendant it would be. In excluding this testimony and refusing defendant the right to show his surprise at the acts and statements of the witness, the court committed error. State v. Burk, 132 Mo. 371; State v. Bowen, 263 Mo. 282. (4) One of the most serious errors committed in the trial of the case, and one most fatal to the defendant was the language used by the prosecuting attorney, in his argument to the jury, when he said, "The defendant hasn't stated anything in this case." State v. James and Johnson, 216 Mo. 401; State v. Snyder, 182 Mo. 523; State v. Quinn, 174 Mo. 686; State v. Helton, 255 Mo. 183; State v. Evans, 267 Mo. 179.
Frank W. McAllister, Attorney-General, C. P. Le Mire and Henry B. Hunt, Assistant Attorneys-General, for respondent.
(1) The evidence of pregnancy of the prosecutrix and of the birth and paternity of her child was admissible to corroborate the evidence of her chastity, to establish the date of the seduction, and to identify the appellant as the party who had seduced the prosecutrix. 35 Cyc. 1302 (VIII); 25 Am & Eng. Ency. (2 Ed.) 237, 240; Underhill's Crim. Evidence (2 Ed.), sec. 386; State v. Reed, 237 Mo. 224; State v. Fogg, 206 Mo. 709; State v. Palmberg, 199 Mo. 253. (2) The matter of allowing one to cross-examine and impeach his own witness is largely within the discretion of the trial court. State v. Bowen, 263 Mo. 282; Beier v. St. Louis Transit Co., 197 Mo. 215; State v. Burks, 132 Mo. 371; Deubler v. United St. Ry. Co., 195 Mo.App. 658; Underhill's Crim. Evidence (2 Ed.), sec. 220; 1 Greenleaf on Evidence (16 Ed.), sec. 444; 5 Jones on Evidence, secs. 851-870. Proper grounds must be laid to authorize the introduction of ex parte statements for the purpose of impreaching one's own witness. Bates v. Halliday, 31 Mo.App. 169; State v. Bowen, 263 Mo. 282; State v. Reed, 89 Mo. 170; Commonwealth v. Thyng, 134 Mass. 191; People v. Bushton, 80 Cal. 160; Underhill's Crim. Ev. (2 Ed.) sec. 235. If the alleged ex parte statements be not denied there is no ground for the introduction of said statements. Deubler v. St. Ry. Co., 195 Mo.App. 658; State v. Bowen, 263 Mo. 282. (3) Objections and exceptions must be saved to argument of which complaint is made and the statements objected to must be set out in the bill of exceptions. Kelly's Crim. Law and Practice (3 Ed.), sec. 402; State v. Whitset, 232 Mo. 511; State v. Harvey, 214 Mo. 403; State v. Clapper, 203 Mo. 549; State v. James, 194 Mo. 279. (4) Where substantial evidence of guilt is presented a peremptory instruction in the nature of a demurrer at the close of the evidence is properly overruled. State v. Long, 257 Mo. 211; State v. Fogg, 206 Mo. 717; State v. Swan, 239 Mo. 728; State v. Wertz, 191 Mo. 578; State v. Mead, 184 Mo. 254.
Defendant, tried in the circuit court of Worth County upon the charge of seduction under promise of marriage, was found guilty, and his punishment assessed at a fine of $ 500. and imprisonment in the county jail for a term of twelve months. After the conventional manner he has appealed.
The record is voluminous, but the facts necessary to an understanding of the several points urged by defendant and discussed in the opinion lie within a moderately circumscribed compass. The young woman in the case resided, when not engaged as a domestic servant, with her mother and stepfather. Her name is not necessary to an understanding of the case, and we shall refer to her simply as the prosecutrix. She was born, according to her testimony, in the year 1895, and she was seduced (again according to her testimony) on or about the 31st day of January, 1915, when she was slightly less than twenty years of age. Prior to her acquaintance and association with defendant, which began about the latter days of December, 1914, she had kept company for longer or shorter periods with some eleven other young men. From one of these named Orville Johnson, she had accepted long and most assiduous attentions. Numerous letters from her to Johnson were offered, all of which breathed superheated and hectic affection. Some of these letters were written to Johnson right around the time she says she promised to marry defendant. One at least of them was written after the date at which she had promised to marry defendant.
Following the meeting of defendant and prosecutrix, defendant, pursuant to permission asked and given in that behalf, called on prosecutrix on January 3, 1915. He called again on January 10th following, and on this visit he asked prosecutrix to marry him. The suddenness of the situation caused her to take the offer under advisement, which she did for a week. Defendant called again on the 17th day of January, 1915, and prosecutrix being by that time fully advised, agreed to marry defendant. She immediately asked leave of defendant to call in her younger sister, a girl some eighteen years of age, and impart to the latter the important connubial tidings mentioned. When this sister came into the room, prosecutrix told her that she and defendant were going to be married. Thereupon the sister made inquiry of defendant as to the proposed date of the interesting and happy event, and was told by defendant, seemingly without consulting prosecutrix, that it would be "some time in June." In passing this point, it is pertinent and somewhat illuminating to observe that the prosecutrix never made any preparations for this wedding; nor did she ever tell her mother or any other living mortal (save her sister) till after a child was born; nor did she ever refer to the matter of marriage in any one of the numerous letters which she wrote to the defendant.
Upon the first call of defendant -- that of January 3, 1915 -- he was accompanied by one Don Hagan, who was calling upon the sister of prosecutrix. Illustrative of the rapidity with which the ice of bashfulness was broken, and the remarkable celerity with which acquaintance grew into the most intimate friendship, the prosecutrix relates that she, defendant, Hagan and her sister all rode together, on this first night that defendant had ever called on her, in a single-seated buggy some four miles from her home to the village of Redding, to attend church. On this trip the two girls sat upon the seat of the buggy, and Hagan and defendant sat in the laps of the girls.
Following the promise of marriage, and on the same evening, prosecutrix says defendant tried to have sexual intercourse with her, but she refused to permit the act. He came to see her again on or just after the 31st of January, 1915, this being the fourth call he had ever made on her, and the fourth time he had ever been in her company, and the fifth time he had ever seen her. On the occasion of this fourth call he renewed his importunities and she yielded upon the suggestion that since they were to marry anyway no harm would result. Following this initial act, sexual intercourse between them continued, occurring whenever opportunity offered till sometime about March 4th following. From this intercourse pregnancy resulted. Prosecutrix says the specific act from which pregnancy resulted occurred on the 14th of February, 1915. In September prosecutrix went to Kansas to visit some relatives, and on the 16th day of October, 1915, the child was born.
Through character witnesses testifying generally as to good repute the prior reputation of prosecutrix for chastity was shown to have been good. Against this the defense offered two witnesses who swore to having had sexual intercourse with prosecutrix repeatedly before the defendant ever saw her. Likewise, many letters written by her to said Johnson, and to the defendant were offered. These letters abound in obscene references. In one or more of them, prosecutrix makes flippant reference to her condition; likewise in one or more of...
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