State v. Evans
| Decision Date | 10 March 1897 |
| Citation | 39 S.W. 462,138 Mo. 116 |
| Parties | The State v. Evans, Appellant |
| Court | Missouri Supreme Court |
Appeal from Clinton Circuit Court. -- Hon. William S. Herndon Judge.
Reversed and remanded.
Wm Henry & Son for appellant.
The circuit court committed error in permitting the defendant's wife to testify against him, for she was incompetent as a witness to prove any act or offense of defendant committed by him before the marriage under our statute as well as at common law. R. S. 1889, sec. 4218. The rule of the common law excluding husband and wife from testifying for or against each other, is based for the most part upon that ground of public policy which demands the preservation and harmony of the marital relation. Stein v. Bowman, 13 Pet. 222; Bradford v. Williams, 2 Md. Ch 1; Byrd v. State, 34 Am. Rep. 442; State v. Burlingham, 15 Me. 104; Kimbrough v. Mitchell, 1 Head (Tenn.), 539; Compton v. State, 13 Tex.App. 271; State v. Berlin, 42 Mo. 572, 577; State v. Ulrich, 110 Mo. 364; State v. Willis, 119 Mo. 488; 29 Am. and Eng. Ency of Law, 624. And this rule of exclusion is so inflexible that it is relaxed in but few cases, and never in criminal practice, save and except in that class of cases in which it is necessary for the protection of the wife from personal violence of the husband, involving her bodily safety or liberty. State v. Hussey, Busb. (N. C.) 123; State v. Burlingham, 15 Me. 107; Bentley v. Cooke, 3 Doug. 422; State v. Armstrong, 4 Minn. 335; Bassett v. United States, 137 U.S. 496; 29 Am. and Eng. Ency. of Law, 638. And the wife is not a competent witness to prove any act of the husband antedating the marriage. Rex v. Locker et al., 5 Esp. 107. And this is so, although it appears that the relation was entered into for the sole purpose of suppressing her testimony. United States v. White, 4 Utah, 499; Rex v. Locker, 5 Esp. 107. (2) The court erred in permitting Dr. Sharp to testify to the absence of the hymen of the prosecuting witness in the month of September, 1895, long after she attained the age of fourteen years; for if its absence was any evidence of lack of virginity at all, it was no evidence of such lack several months prior to its discovery, much less that defendant deprived her of that virtue. (3) The first instruction given at the request of the State was improper and misleading in that it directed a verdict of guilty if the jury believed defendant did ravish and carnally know Aggie De La Verne at any time prior to May 8, 1896; while in point of fact it was impossible for carnal knowledge to constitute the crime as alleged in the indictment during the last three months and eighteen days of that time because of the marriage relation then existing between the parties, and while it was also impossible for carnal knowledge to be a crime during the last year of that time, save eleven days, if the witnesses of the State are to be believed, because, according to their evidence, Aggie was fourteen years of age on and after May 29, 1895. (4) The circuit court committed error in giving to the jury the third instruction in regard to defendant fleeing from this State when accused of the crime, etc., for we contend that there was no evidence to base it on. (5) The first instruction as prayed by defendant at the close of the evidence should have been given, for the whole evidence outside of that given by his wife, all of which was incompetent, failed to show that the crime, if any, was committed in Clinton county, and fails to show that the carnal knowledge, if any, was had before Aggie attained the age of fourteen years. (6) There is a fatal variance between the indictment and evidence in that the indictment charges defendant with having carnal knowledge of Aggie De La Verne, while the evidence tended only to show such carnal knowledge of Aggie Evans.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
The wife is a competent witness against the husband where she is the immediate prosecutrix, for some injury threatened or done her person. State v. Arnold, 55 Mo. 89; State v. Tucker, 71 Ala. 342. To the general rule excluding the husband and wife as witnesses there are several exceptions which arise ex necessitate rei partly from the protection of the wife, and partly for the sake of public justice. State v. Newberry, 43 Mo. 433. A married woman is excluded as a witness from motives of public policy. As a general exception to that rule, whenever the policy or necessity of admitting her as a witness against her husband is sufficiently strong to overbalance the principles of public policy, she ought to be received as a witness. Bach v. Permaly, 35 Wis. 238; Lucas v. Brooks, 18 Wallace, 452. Greenleaf on Evidence, volume 1, section 343, says: The general rule against the right of the wife to testify being founded upon ground of public policy, and as the exceptions thereto arise from the necessity of the case, it would appear that for the same reason, ex necessitate rei, she would be a competent witness as to the matter of excepted character transpiring and taking place before marriage, as well as after marriage. State v. Tucker, 71 Ala. 343. The reason for the rule being founded upon public policy and the exceptions thereto taking place when the necessity and public morals overbalance public policy, the reason therefor is removed and the rule destroyed.
The appellant was indicted and convicted in the circuit court of Clinton county of rape and sentenced to eight years' imprisonment in the penitentiary. The indictment charges that Othello M. Evans on or about August 3, 1894, in and upon one Aggie De La Verne, a female child under the age of fourteen years, to wit, of the age of thirteen years, unlawfully and feloniously did make an assault and her the said Aggie De La Verne then and there unlawfully and feloniously did carnally know and abuse, against the peace and dignity of the State.
The evidence tended to show that on July 13, 1894, the defendant and Aggie De La Verne were at a picnic in Clinton county; that defendant accompanied her to her home that night, and induced her by his solicitations to have sexual intercourse with him in her father's house.
It was shown that she was born May 29, 1881, and consequently was under fourteen years of age when the cohabitation occurred. There was evidence that defendant admitted to Dr. Sharp and to the girl's mother that he had had sexual intercourse with the girl. It was shown, indeed admitted, by both sides, that defendant and the said Aggie De La Verne, were afterward, to wit, on January 21, 1896, and prior to the finding of the indictment, lawfully married. The said Aggie De La Verne was permitted to testify at the trial and was introduced as a witness in the case by the State in the name of Aggie Evans, and the examination proceeded as follows:
This question and the answer thereto, and all testimony of the witness, was objected to by defendant, for the reason that the witness is the lawful wife of defendant, and as such incompetent as a witness to testify against him against his consent or otherwise, and for the further reason that the indictment charges a rape upon Aggie De La Verne and the witness says her name is Aggie Evans. And thereupon the State, by the prosecuting attorney, admitted that the said witness is the lawful wife of the defendant, and that she was lawfully married to defendant on January 21, 1896, and that the State expects to make out its case by proving that the rape charged in the indictment was committed upon her, the said witness, prior to said marriage, and at the time of the commission of said rape the witness' name was Aggie De La Verne.
And thereupon the court held and ruled that said witness, although the lawful wife of defendant, was a competent witness to prove the fact of carnal knowledge as charged in the indictment, and overruled said objections of defendant; to which action and ruling of the court the defendant then and there at the time excepted.
And under said ruling of the court said witness testified, in substance, that defendant had sexual intercourse with her on the thirteenth day of July, 1894; that she was thirteen years old the May before, and that she was born May 29, 1881; and also that this occurred in Clinton county, Missouri, and that the sexual act was repeated on August 3, 1894, in said county.
Outside of the testimony of this witness there was no evidence of the venue of the crime or of the corpus delicti. The declarations testified to by the mother of the witness, and Dr. Sharp and E. L. Moorman, which might be taken as admissions of defendant that he had sexual intercourse with said Aggie, had no tendency to show when or where it happened, and certainly not to show that it occurred before she was fourteen years of age, so as to constitute rape, as charged in the indictment.
Dr. Sharp, a witness for the State, in his direct examination, was asked the question: "I will get you to state whether or not you ever made an examination of Miss Aggie De La Verne, and if so when?"
Which was objected to by defendant's counsel as incompetent,...
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