State v. Drummins

• Decision Date: 03 June 1918
• Docket Number: No. 20742.,20742.
• Citation: 274 Mo. 632,204 S.W. 271
• Parties: STATE v. DRUMMINS.
• Court: Missouri Supreme Court

204 S.W. 271

274 Mo. 632

STATE v. DRUMMINS.

No. 20742.

Supreme Court of Missouri, Division No. 2.

June 3, 1918.

Appeal from Circuit Court, Worth County; Charles H. Mayer, Special Judge.

Lawrence Drummins was convicted of seduction, and he appeals. Reversed, and remanded for new trial.

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 12 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 this 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 slight-y less than 20 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 18 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 and defendant, Hagan and her sister all rode together, on this first night that defendant had ever called on her, in a singleseated 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 some time 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 them, and in one at least which she wrote to Johnson, before she ever met defendant, reference is made to a prior occasion when she either was pregnant or feared that she was. It is fair to say that the prosecutrix denied writing some of these letters. But in the face of the testimony as to the authenticity of all of them, and upon a comparison of their style, construction, spelling, and other earmarks, with those conceded to be genuine, denial of their authorship would seem to be well-nigh futile. Since, however, by prosecutrix's denial the question of authorship of some of the most obscene of these letters became a question for the jury, which in effect they resolved by their verdict, it would subserve no useful purpose to besmirch the books with their contents. We are satisfied to say of these letters that their contents are such as to show conclusively that, if prosecutrix wrote them, she had wandered so far from the path of virtue before she ever met defendant, as to render her seduction by him an impossibility.

Prosecutrix says that after discovering her condition about the 4th of March, 1915, she advised defendant thereof, and that they decided to go to Mt. Ayr, Iowa, and be married. They did go to Mt. Ayr, but upon arriving there defendant, she says, told her that it would be better for them not to marry on account of public opinion, but that he would get her some medicine to cause a miscarriage. They occupied the same room in a hotel that night in Mt. Ayr, and on the next day returned home. Subsequently she says, and this is corroborated by one of her letters to defendant, he got other medicine for her, but it failed to relieve her condition. She testifies herself that the defendant is the father of her child, and that she never had sexual intercourse with any other man than defendant.

Defendant did not take the stand in his own behalf, but upon the trial, in making objection to certain testimony which was offered, through his counsel he admitted acts of sexual intercourse with prosecutrix, and the state offered upon its side a letter from defendant to prosecutrix vaguely hinting at marriage. Touching the age of prosecutrix there was no testimony in the case, except her own, and to offset this defendant offered one witness who testified to the statements of prosecutrix, indicating that she was at the time of the alleged promise of marriage over the age of 21 years.

Some three or four witnesses were put upon the stand by defendant, and each was asked whether he had bad sexual intercourse with prosecutrix. Each of them denied the fact. Thereupon the defendant by his counsel, averring surprise, made profert of testimony to the effect that each of these several witnesses had before they were put upon the stand told defendant and his counsel that they had had sexual intercourse with prosecutrix, and that in the belief that they would so testify if put upon the stand they were called as witnesses by defendant. The court refused to permit these witnesses to be impeached by defendant by making the showing which they offered to make of prior, extrajudicial contradictory statements. This is urged as error. More specific reference will hereafter be made to this question, as well as to the evidence which bears upon other points which we find it necessary to discuss in our opinion, wherein all further facts, if any such" there be, which will serve to make clear these points, will be found.

John Ewing, Dubois & Miller, and Kelso & Kelso, all of Grant City, for appellant. Prank W. McAllister, Atty. Gen., and C. P. Le Mire and Henry B. Hunt, Asst. Attys. Gen., for the State.

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

I. It is ably and strenuously contended that the evidence is insufficient to sustain the charge of seduction, and that a demurrer interposed thereto below ought to have been sustained. This contention is obviously a serious one, as the statement of the case makes manifest. The sexual intercourse was admitted. The four oiler constitutive elements of seduction under promise of marriage, to wit: (a) Was there a promise of marriage prior to the seduction? (b) Was the prosecutrix a woman of previous good repute? (c) Was she when debauched under 21 years of age? (d) Was she unmarried at the time? are put in question by this contention.

We have no hesitation in saying that there was substantial evidence of all of the above elements of this offense, save and except as to the first. The fact that prosecutrix was unmarried is shown by the proof, and in no wise questioned. The fact that prosecutrix's age put her under the protecting shelter of the statute was sharply controverted, but...