State v. Fish

• Decision Date: 10 June 1932
• Docket Number: No. 31758.,31758.
• Citation: 50 S.W.2d 1020
• Parties: STATE v. FISH.
• Court: Missouri Supreme Court

50 S.W.2d 1020

STATE v. FISH.

No. 31758.

Supreme Court of Missouri, Division No. 2.

June 10, 1932.

Appeal from Circuit Court, Howell County; Robert L. Gideon, Special Judge.

Roe Fish was convicted of having carnal knowledge of an unmarried female of previous chaste character, between sixteen and eighteen years of age, and he appeals.

Affirmed.

G. W. Rogers, of Gainesville, for appellant.

Stratton Shartel, Atty. Gen., and Carl J. Otto, Asst. Atty. Gen., for the State.

COOLEY, C.

Defendant was tried and convicted in the circuit court of Howell county and duly sentenced to two years' imprisonment in the penitentiary upon an information charging him with having unlawfully and feloniously had carnal knowledge of an unmarried female of previous chaste character between sixteen and eighteen years of age, to wit, of the age of seventeen years, he being then over the age of seventeen years.

The state's evidence tended to prove that defendant and the prosecutrix had been "keeping company" for some two years prior to the date of the offense charged, which was July 27, 1929, and that on the latter date he had sexual intercourse with prosecutrix; that prosecutrix was then seventeen and defendant twenty years of age and that prosecutrix was unmarried and of previous chaste character; that the sexual act occurred between the parties several times during the next few weeks, after which time defendant ceased his visits; that prosecutrix gave birth to a child as the result of such intercourse; that at and prior to the first act of intercourse defendant had promised to marry prosecutrix but later refused to do so.

Defendant testified in his own behalf and admitted having "kept company" with prosecutrix "off and on" for about two years, but denied that they were "regular sweethearts" and denied that he had had sexual intercourse with her. The sufficiency of the evidence to sustain the conviction is not challenged and could not successfully be challenged. The foregoing is a sufficient outline of the facts for an understanding of the only question presented on this appeal.

The only alleged error complained of by defendant either in his motion for new trial or in this court is the admission by the trial court of certain evidence offered by the state. One Lewis Collins, called as a witness by the state, testified that about a month or six weeks prior to July 27, 1929, defendant one night brought the prosecutrix to a schoolhouse where a church dinner was being held; that defendant came to the witness behind the schoolhouse and asked him if he (Collins) knew of any one ever having had sexual intercourse with the prosecutrix, to which Collins replied in the negative; that defendant thereupon said, "Well, I'm sure going to _____ her," using a term that meant sexual intercourse. Defendant objected to that testimony on the ground that it was too remote and did not tend to prove or disprove any issue in ...