State v. Fogg

• Decision Date: 19 November 1907
• Citation: 105 S.W. 618,206 Mo. 696
• Parties: STATE v. FOGG.
• Court: Missouri Supreme Court

105 S.W. 618

206 Mo. 696

STATE v. FOGG.

Supreme Court of Missouri, Division No. 2.

November 19, 1907.

1. INFORMATION — FORMAL REQUISITES — VERIFICATION — SEAL.

The omission of the court seal in attesting the prosecuting attorney's affidavit to an information does not invalidate the verification.

2. CRIMINAL LAW—APPEAL—HARMLESS ERROR —PERMITTING PROSECUTRIX TO TAKE BABY TO WITNESS STAND.

Allowing the prosecutrix in a seduction case to have her baby with her while testifying is not reversible error.

3. SAME — INSTRUCTIONS — REFUSAL OF CHARGE CONTAINED IN OTHERS GIVEN — CORROBORATION OF PROSECUTRIX.

In a prosecution for seduction, refusal to charge that slight particulars, such as usually attend an engagement of marriage, are not sufficient to show an engagement, nor mere personal attention unless from its duration and the conduct of the parties it is reasonably sufficient to show an engagement, and that such attention must be more than that reasonably to be expected from a gentleman toward a lady whose society is agreeable, and not merely such as might be expected between two young people having illicit intercourse with each other, and that the corroboration of the prosecutrix as to the promise of marriage must be something more than sufficient to overcome accused's oath and the legal presumption of his innocence, is not reversible error, where the jury is charged that they cannot find a promise of marriage on the prosecutrix's testimony alone, but she must be corroborated by other testimony, which may consist of proof of accused's statements in relation thereto, preparations of prosecutrix for marriage, continuous courtship, from which an engagement may be presumed, and that the corroboration must be strong enough when taken with the testimony of prosecutrix to overcome accused's oath and the legal presumption of his innocence, and that the prosecutrix's evidence must be supported by that of witnesses, or by corroboration of acts or circumstances sufficient to show the truth of the testimony in that respect.

4. SEDUCTION — NATURE OF OFFENSE — PRIOR CHARACTER OF PROSECUTRIX.

A conviction for seducing, under promise of marriage a female of good repute at the time of the offense may be had, although prior to that time she may not have been virtuous.

5. CRIMINAL LAW — INSTRUCTIONS — REFUSAL OF CHARGE CONTAINED IN THOSE GIVEN — ELEMENTS OF OFFENSE.

In a prosecution for seduction, it was not error to refuse instructions that accused was not guilty if the prosecutrix consented to sexual intercourse with him, in consideration of a promise of marriage, or without the practice of arts or blandishments upon her by accused, and merely to satisfy her passions, even though she may have been of good repute, where the court charged that to authorize a conviction prosecutrix must have been of good repute at the time of the seduction, and consented to the intercourse on the faith of a promise of accused to marry her, and not for the satisfaction of her lustful propensity, without any arts or blandishments of accused.

6. CRIMINAL LAW — EVIDENCE — CHARACTER OF ACCUSED — FOUNDATION FOR TESTIMONY.

In a prosecution for seduction, the mere fact that there is a conflict between the testimony of accused and the prosecutrix is not such an attack on his reputation for truth and veracity as will admit testimony in his behalf as to his reputation, where it has not been otherwise assailed.

7. CRIMINAL LAW — APPEAL — REVIEW — CREDIBILITY OF WITNESSES — CONFLICTING EVIDENCE.

It is the province of the jury to pass upon the credibility of witnesses and the weight of testimony, and where the testimony is conflicting their decision will not be disturbed.

8. SEDUCTION—CRIMINAL PROSECUTION—EVIDENCE.

Evidence held sufficient to sustain a conviction of seduction.

Appeal from Circuit Court, Barry County; Argus Cox, Judge.

James R. Fogg was convicted of seduction, and he appeals. Affirmed.

This cause is brought to this court by appeal on the part of the defendant from a judgment of conviction in the circuit court of Barry county for seduction under promise of marriage. Omitting formal parts, the information, which was duly verified, upon which this prosecution is based, thus charged the offense: "D. H. Kemp, prosecuting attorney within and for the county of Barry, in the state of Missouri, acting herein under his oath of office, and upon his knowledge, information, and belief, informs the court that one James R. Fogg, on the ____ day of March, 1905, at and in the county of Barry and state of Missouri, did then and there, under and by promise of marriage, made to one Minnie P. Hefley, by him, the said James R. Fogg, unlawfully and feloniously, seduce and debauch her, the said Minnie P. Hefley, she, the said Minnie P. Hefley, being then and there an unmarried female of good repute and under 21 years of age, against the peace and dignity of the state." Defendant filed an application for a change of venue on the ground of the alleged prejudice of the regular judge of that court, which application was sustained, and Hon. Argus Cox, under the provisions of the statute, was requested to try the case, and in obedience to such request did try the case in Barry county at the September term, 1906, of said court.

While in the trial of cases of this character it is essential in the trial court to have the witnesses detail minutely all the acts done and conversations had which tend to establish the commission of the offense charged, yet in the appellate court we do not deem it essential to recite in detail all of the testimony of the respective witnesses as to the commission of this offense. Testimony of witnesses in cases of this character frequently consist of statements that add nothing to the legal literature of this state, and cannot be of any interest to the profession or the public; therefore we must be content with a sufficient statement of the tendency of the proof to enable us to determine the legal propositions arising from the evidence introduced. We have read in detail the entire testimony in this cause as disclosed by the record. The state's evidence tended to prove that prosecutrix was born on August 16, 1884, and was, therefore, between 20 and 21 years old at the time of the alleged commission of the crime charged. At said time she lived with her parents at their home in the Pasley school neighborhood, some four or five miles southwest of the town of Cassville, in Barry county. Defendant lived in the same neighborhood. In July, 1904, prosecutrix and defendant became engaged, but quit keeping each other's company till about the 1st of January, 1905. About the 15th of January, 1905, they again became engaged, and their marriage was set for the first Sunday in May following. On account of prosecutrix being sick at that time, the marriage was postponed till the 4th of July. On account of defendant having a fight, and the prosecution that resulted therefrom, the marriage was postponed till the 1st of September. The last of September or the first of October, it was discovered that prosecutrix was pregnant, and defendant quit visiting her. As soon as she and defendant became engaged prosecutrix began making a carpet, some clothes, and quilts, and defendant gave her some money with which to make purchases. In the spring and summer of 1905 prosecutrix procured fruit, which she canned; also put up some jelly for the family use. On the 30th of March, 1905, defendant requested prosecutrix to have sexual intercourse with him, but she declined. Defendant reminded her that it was only a short time till they were to be married, and assured her that no one would know it except them. He also reminded her of the money that he had given her to buy clothing with, and told her that she ought not to refuse him if she cared for and loved him. Having confidence in and loving him as she did, prosecutrix yielded to defendant several times; the seduction occurred at her father's home at night, after her parents had gone to bed. As a result of said intercourse prosecutrix gave birth to a child on January 6, 1906. The parents of prosecutrix corroborated her as to the long-continued friendship that existed between prosecutrix and defendant, and also testified as to the preparations that she made to be married. They further testified that the defendant visited prosecutrix twice a week, took her to church and Sunday school, and visited with her around the neighborhood. Other witnesses testified to the fact that prosecutrix and defendant were frequently in each other's company; attended church, Sunday school, social gatherings, and took buggy rides together. Mr. and Mrs. Henry Dunn testified to seeing prosecutrix and defendant together often, and that the two took supper with them, and that they were joking defendant and prosecutrix about marrying. Mr. Dunn told defendant that he and his wife would give them some canned cherries when they married. As defendant and prosecutrix walked away together that evening, defendant said: "Mr. Dunn, when me and Minnie gets to ourselves, come and see us." This was along in June, 1905. Miss Flossie Miller testified to a conversation that she had with defendant, in which defendant invited her to come and see him and prosecutrix when they married; this conversation occurred the first Sunday in May, 1905. On the same day, Miss Miller heard defendant say to prosecutrix that he would come and help her pick strawberries when they got ripe, and that they would put up enough to do them till strawberries come again. In the presence of Miss Ethel Henbest, defendant and prosecutrix talked about marrying, and the room that they would occupy at the Hefley home. During the summer of 1905 defendant spoke to this witness about a corn crop of his, and said that prosecutrix was going to cook that corn the next winter. Defendant and prosecutrix went together to look at a house called the "Merritt Place," situated on the Henbest farm; and...