State v. Eisenhour

• Decision Date: 21 January 1896
• Citation: 132 Mo. 140,33 S.W. 785
• Parties: STATE v. EISENHOUR.
• Court: Missouri Supreme Court

33 S.W. 785

132 Mo. 140

STATE v. EISENHOUR.

Supreme Court of Missouri, Division No. 2.

January 21, 1896.

CRIMINAL LAW — APPEAL — REVIEW — SEDUCTION — EVIDENCE — CORROBORATION OF PROSECUTRIX — DISCRETION — HARMLESS ERROR.

1. Where, in a prosecution for seduction under promise of marriage, a general objection is interposed to the question asked prosecutrix as to whether defendant, in conversations after the seduction, referred to his promise of marriage made prior thereto, and she answered that after the seduction defendant had promised to marry her, the failure to move to strike out the answer as not responsive to the question waives the objection thereto.

2. Where the question does not show that any answer the witness might make would be relevant, to warrant a reversal for sustaining an objection thereto defendant must show that he was injured.

3. Rev. St. 1889, § 4212, providing that, to warrant a conviction for seduction under promise of marriage, the testimony of the woman as to such promise must be corroborated to the same extent required of the principal witness in perjury, evidence that defendant was constant in his attentions to prosecutrix for two years, visiting her weekly, and that she received attentions from no other man, is a sufficient corroboration of her testimony.

4. Where, in a prosecution for seduction, defendant testifies on direct examination that he had constantly visited prosecutrix until after her alleged seduction, it is proper to permit him to be asked on cross-examination why he ceased his visits.

5. In a criminal case it is within the discretion of the trial court to permit the state to introduce evidence after the case has been closed, but before it was submitted to the jury.

6. That the court rendered judgment directly after accused's motion for a new trial was overruled, and before his motion in arrest of judgment was filed, which was subsequently considered and overruled, is not ground for reversal.

Appeal from circuit court, Carroll county; W. W. Rucker, Judge.

Richard Eisenhour was convicted of a crime, and appeals. Affirmed.

Instructions Nos. 1 and 2, given for the state, were as follows: "(1) The jury cannot find that there was a promise of marriage upon the evidence of Ada Jenkins alone, but, under the law, her evidence as to the promise of marriage must be corroborated — that is, confirmed — by testimony independent of her evidence, either by other direct or positive evidence as to the promise of marriage, or by admissions of the defendant to others as to his engagement of marriage, or by facts and circumstances testified to by others, such as usually attend an engagement of marriage. But where facts and circumstances, such as usually attend an engagement of marriage, are relied upon as corroborating, slight and indifferent particulars are not sufficient; nor will proof of attention merely be sufficient, unless from its duration and constancy, and from acts, conversation, and conduct of the parties, it reasonably carries conviction to the mind that an engagement of marriage exists, and that the attention is not merely such as might be reasonably expected, without impropriety, from a gentleman towards a lady whose society was agreeable; and the corroboration of the prosecuting witness as to the promise of marriage, whether direct and positive or consisting of facts and circumstances as stated above, must be something more than sufficient to overcome the oath of the defendant and the legal presumption of his innocence. (2) The jury are instructed that they may find the fact of seduction upon the unsupported testimony of the prosecutrix, Ada Jenkins, but, as to the promise of marriage, her testimony must be corroborated by other testimony sufficient to overcome the oath of the defendant and the legal presumption of his innocence, — that is, the testimony of the prosecutrix, Ada Jenkins, as to the defendant's promise of marriage, must be supported by proof of facts and circumstances sufficient to establish said contract or promise of marriage, and to entitle it to more weight with the jury than the testimony offered by the defendant."

From a judgment of conviction, fixing his punishment at a fine of $200, and imprisonment in the county jail for 60 days, for seducing and debauching one Ada E. Jenkins, an unmarried female under the age of 18 years, under promise of marriage, defendant appealed. The offense is alleged to have been committed in Carroll county, and the trial and conviction were had in the circuit court of that county. The prosecuting witness and the defendant both lived in Carroll county, about six miles apart. He called at her mother's home with a friend, and became acquainted with her, in the spring of 1891, and from that time on, until June, 1893, called on her regularly (she testified about once a week), occasionally taking her to entertainments, and frequently to church on Sundays. She also testified that they became engaged to be married about his second visit; that afterwards her mother's family, including herself, moved to Bosworth, in said county, where she and defendant went to school together; that, after she moved to Bosworth, defendant continued to visit her as before, and in January, 1893, during their engagement to marry, and under promise by defendant to marry her, he seduced and debauched her; that, as a result of said seduction, a child was born to her October 4, 1893, which died about three weeks thereafter; that defendant visited her after he knew that she was pregnant, and also after the indictment was found, and admitted that he had promised to marry her, and stated that he intended to do so; that she was under 18 years of age at the time of the seduction, at which time the evidence showed she was of good repute. Defendant denied that he ever promised to marry Ada E. Jenkins, but did not deny that he had entertained criminal relations with her. The evidence on his part tended to show that she was over 18 years of age at the time of the alleged seduction.

Hale & Son and Lozier, Morris & McCaner, for appellant. R. F. Walker, Atty. Gen., and Morton Jourdan, for the State.

BURGESS, J. (after stating the facts).

1. The first assignment of error is with respect to the action of the court in allowing the prosecuting witness, Ada Jenkins, to state, over the objections and exceptions of defendant, that on some three or more occasions after the month of January, 1893, when she stated the seduction occurred, defendant stated to her that he would marry her. Some of these statements were made voluntarily by the witness, in answer to questions by the prosecuting attorney with regard to what was said by defendant in those conversations with respect to promises of marriage made by him to her before the seduction. The questions were proper, as any admissions or statements made by the defendant at any time tending to show that he had promised to marry her before the offense is alleged to have been committed were admissible against him; but evidence of any promise of marriage made after that time was clearly inadmissible. The objections, however,...