State v. Evans

• Decision Date: 01 March 1916
• Citation: 183 S.W. 1059,267 Mo. 163
• Parties: THE STATE v. HOMER EVANS, Appellant
• Court: Missouri Supreme Court

183 S.W. 1059

267 Mo. 163

THE STATE v. HOMER EVANS, Appellant

Supreme Court of Missouri

March 1, 1916

Appeal from Buchanan Circuit Court. -- Hon. Thomas F. Ryan, Judge.

Reversed and remanded.

G. L Zwick for appellant.

(1) The court erred in submitting the case to the jury and in failing to instruct the jury to find the defendant not guilty, which instruction was asked by defendant at the close of the State's case, because the evidence was not sufficient to establish the contract of marriage. State v. Heed, 57 Mo. 252; State v. Reeves, 97 Mo. 668; State v. Eckler, 106 Mo. 593; State v. Long, 238 Mo 393; State v. Bruton, 253 Mo. 361. (2) The court erred in failing to fully cover all the law in the case in the instructions given for that the evidence of the defense as to previous acts of intercourse was entirely ignored. Clemons v. Seba, 131 Mo.App. 378; State v Patterson, 88 Mo. 93; State v. Wheeler, 94 Mo. 252; State v. Fogg, 206 Mo. 712; State v. Long, 257 Mo. 225; Staples v. State, 175 S.W. 1056; Humphrey v. State, 143 S.W. 641. (3) The court erred in permitting the prosecuting attorney to make improper and prejudicial remarks in his opening address to the jury as to defendant's failure and refusal to marry prosecutrix after the alleged seduction and in allowing him to repeat such remarks during the argument at the close of the case. 35 Cyc. 1335; State v. Spivey, 191 Mo. 112; State v. Bobbst, 131 Mo. 338; State v. Upton, 130 Mo.App. 316; State v. Graves, 95 Mo. 510; State v. Leaver, 171 Mo.App. 376; State v. Wellman, 253 Mo. 302; State v. Schneiders, 259 Mo. 330; Cook v. People, 2 Thompson & C. 404; State v. Good, 46 Mo.App. 515; State v. Webb, 254 Mo. 434; State v. Hyde, 234 Mo. 256; State v. Clancy, 225 Mo. 654; State v. Elmer, 115 Mo. 401; State v. Fischer, 124 Mo. 464; State v. Ulrich, 110 Mo. 365; State v. Young, 99 Mo. 666; State v. Jackson, 95 Mo. 623. (4) Instruction number 2 should have required the jury to find that prosecutrix was of previous chaste character; or, at least, that she was honestly pursuing the path of virtue at the time instead of merely that she was "of good repute." State v. Howard, 175 S.W. 58; State v. Wheeler, 94 Mo. 252; State v. Marshall, 137 Mo. 467; People v. Weinstock, 140 N.Y.S. 453; State v. Primm, 98 Mo. 368. (5) Instruction number 3 is erroneous in not attempting to define what is meant by "corroboration," and, further, in being a comment upon the evidence by suggesting that defendant had admitted to other parties that he was engaged to prosecutrix, when there was no evidence of such an admission. State v. Reeves, 97 Mo. 674; State v. Chyo Chiagk, 92 Mo. 416. (6) The court erred in admitting incompetent, irrelevant and immaterial testimony offered on the part of the State and objected to by defendant.

John T. Barker, Attorney-General, and Lewis H. Cook for the State.

(1) The trial judge followed the approved instructions in the case of State v. Meals, 184 Mo. 244. The court did not fail to instruct the jury as to the meaning of corroborative evidence and the weight of corroborative evidence required under the law in cases of this character. State v. Meals, 184 Mo. 244; State v. Fogg, 206 Mo. 696. Instruction number 2, while it does not specifically tell the jury that previous acts of intercourse on part of prosecutrix with other persons would entitle the defendant to an acquittal, yet requires the jury to find prosecutrix of good repute in the neighborhood, and that is all that is required by the law and that is the only issue raised by the statute. State v. Walker, 232 Mo. 252. (2) Samuel Jeffries stated that the defendant "seemed to treat her as his sweetheart and seemed to think lots of her," and at another point in his testimony stated "she didn't seem to care for anyone else," "she didn't seem to care for any other company and didn't go with anyone else." These utterances were made in connection with a detailed statement by him of the actions of prosecutrix and defendant, and while it may be that such statements were mere conclusions of the witness, yet when made in connection with a detailed statement of the actions of the parties showing upon what he based his conclusion, they could not have been prejudicial to the defendant. Hunter v. Briggs, 254 Mo. 28; Lee v. Lee, 258 Mo. 612. (3) The court should not have sustained the demurrer to the evidence offered at the close of the State's testimony, assigning as a reason therefor that there was no corroborative evidence of the engagement of marriage or promise of marriage as testified to by prosecutrix. State v. Long, 257 Mo. 199; State v. Sublett, 191 Mo. 163; State v. Salts, 263 Mo. 304. (4) Defendant complains that the court erred in the argument of the case when he permitted Mr. Sherman, the assistant prosecuting attorney, over the objection of the defendant, to argue before the jury that the prosecuting witness begged him to marry her. Those remarks were not preserved in the record, and if ever made, are not before this court. Mr. Sherman's remarks were not preserved, nor were they later proved in a manner that would place them properly in the record. It is true defendant's attorney made affidavit that such remarks were made, and the State's attorney also made an affidavit concerning said remarks, but such affidavits prove nothing. They accompany this bill of exceptions but are not a part thereof. This assignment of error, therefore, is not bottomed on anything that appears in the record; hence, on this point, there is nothing before the court for review. State v. Feeley, 194 Mo. 315; State v. McAfee, 148 Mo. 380; State v. Feeley, 194 Mo. 740; State v. Valle, 196 Mo. 34. In his opening statement the assistant prosecuting attorney told the jury that prosecutrix, after her conception, had begged the defendant to marry her. There was no evidence offered to prove the specific statements complained of. Were such remarks proper? If they were not proper, were they prejudicial? We have been unable to find a case in which the propriety of such remarks has been decided, and we therefore can only leave the question to this court. This court has been loath to reverse judgments on account of improper remarks of attorneys in the argument when the proof is clear, for the reason that in such cases a verdict of guilty would have been returned regardless of the improper remarks. State v. Dietz, 235 Mo. 332; State v. Harvey, 214 Mo. 403; State v. Church, 199 Mo. 605; State v. Hibler, 149 Mo. 478; State v. Summar, 143 Mo. 220; State v. Levy, 262 Mo. 193. "If the case was a close one, and the conviction rested upon testimony that was unsatisfactory, we might consider this point as worthy of serious consideration, for as we said in the cases of State v. Hess, 240 Mo. 160; State v. Horton, 247 Mo. 657; and State v. Baker, 246 Mo. 376, the misconduct of a public prosecutor will be weighed in connection with the facts of each case, and when the State's case is weak it will require less misconduct on the part of the prosecutor to work a reversal than where, as in this case, the evidence of defendant's guilt is very strong." State v. Helton, 255 Mo. 183. Courts of other jurisdiction have recognized that a misstatement of the evidence in the opening statement by the State's attorney is not as serious and as prejudicial to the defendant's rights as improper remarks in the closing argument. People v. Bleason, 127 Cal. 323; Reynolds v. State, 147 Ind. 3; State v. Todd, 110 Iowa 631; State v. Carins, 124 Mich. 616; People v. Milks, 55 A.D. 372; People v. Chalmers, 5 Utah 201; 12 Cyc. 568.

BLAIR, J. Woodson, C. J., and Graves, J., concur; Bond, J., concurs in the result; Faris, J., concurs in a separate opinion; Revelle, J., dissents in opinion filed; Walker, J., absent. Faris, concurring and dissenting.

OPINION

In Banc.

BLAIR J.

-- In the circuit court of Buchanan County, Homer Evans was convicted of seducing Ruby Jeffries under promise of marriage, sentenced to three years in the penitentiary, and has appealed. Prosecutrix fixes the date of the first illicit act as November 24, 1912, and testifies the only other instance of the kind was upon December 14 of the same year. She was born November 6, 1892, and is one year younger than appellant. She lived with her parents, and, a quarter of a mile away, appellant lived with his sisters and widowed mother, near Saxton, Missouri. The two were reared thus near each other and attended the same public school for some time. Prosecutrix at the age of sixteen or seventeen began to attend the high school at St. Joseph, six miles from her home, and boarded there with her aunt. She attended school at St. Joseph three years.

There is no direct evidence tending to corroborate prosecutrix as to a promise of marriage, and she, herself, does not testify to a formal proposal of marriage and a like acceptance by her. She testified she attended school with appellant and "always went with him," but was not allowed to "keep company with him" until she was eighteen which was November 6, 1910; that while she was in school in St. Joseph, appellant worked there and would meet her at the train when she came from home, and that he took her to church sometimes, but that she was not allowed to go to any other places because she was in school; that in 1910, at appellant's request, she promised to "go with him after she was eighteen" and "go with no one else" except when her father and mother wanted her to do so, "only when it was necessary." She testified concerning appellant, that "when we were going to school, he said we would be married some day and how nice it would be when I was old enough, and we would not be married now, but go together and have a good time, for when we were married we would have to settle down...