State v. George

• Decision Date: 24 November 1908
• Citation: 113 S.W. 1116,214 Mo. 262
• Parties: STATE v. GEORGE.
• Court: Missouri Supreme Court

113 S.W. 1116

214 Mo. 262

STATE v. GEORGE.

Supreme Court of Missouri, Division No. 2.

November 24, 1908.

1. CRIMINAL LAW (§ 1064) — APPEAL — PRESENTATION AND RESERVATION OF ERROR — MOTION FOR NEW TRIAL.

Instructions to which the attention of the trial court was not directed in the motion for a new trial cannot be reviewed.

2. RAPE (§ 59) — TRIAL — INSTRUCTIONS.

An instruction, on a trial for the rape of a child under 14, that, though defendant had intercourse with prosecuting witness, yet, unless she was at the time under 14, defendant should be acquitted, did not furnish any substantial basis for complaint by defendant.

3. RAPE (§ 13) — ELEMENTS — FORCE.

Under Rev. St. 1899, § 1837 (Ann. St. 1906, p. 1271), it is not essential to the offense of the rape of a child under 14 that it be committed with force or without consent.

4. WITNESSES (§ 240) — EXAMINATION — LEADING QUESTIONS — DISCRETION OF COURT.

The allowance of leading questions is largely within the discretion of the trial court.

5. WITNESSES (§ 306) — PRIVILEGE OF WITNESS — ANSWER TENDING TO DISGRACE WITNESS.

On a trial for the rape of a child under 14, prosecuting witness was properly permitted to testify, over objection by defendant that it was degrading to her, that she had sexual intercourse with defendant, and the court properly refused to instruct her that she need not testify to anything that would degrade her.

6. CRIMINAL LAW (§ 1056) — APPEAL — PRESENTATION AND RESERVATION OF ERROR — EXCEPTIONS.

A failure to instruct upon all the law of the case will not be considered on appeal, where the trial court's attention was not called to the failure to so instruct at the time.

7. CRIMINAL LAW (§ 1159) — APPEAL — REVIEW — QUESTIONS OF FACT.

A conviction which there is substantial evidence to support will not be disturbed on appeal.

8. RAPE (§ 52) — EVIDENCE — SUFFICIENCY.

Evidence on a trial for the rape of a child under 14 held sufficient to support a conviction.

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

A. W. George was convicted of the rape of a child under 14, and he appeals. Affirmed.

See, also, 207 Mo. 16, 105 S. W. 598.

This is an appeal on the part of the defendant from a judgment of the circuit court of Camden county, convicting the defendant of the offense of rape. On the 14th of January, 1905, the prosecuting attorney of Camden county filed an information, duly verified, charging the defendant with rape. The date of the alleged offense was November 16, 1904, and Ida Florence George, a female child under the age of 14 years, is alleged to have been the victim of the defendant's assault and ravishment. At the February term, 1906, the defendant was put upon his trial. The evidence upon the part of the state tended to show that the prosecutrix resided with her parents, Mr. and Mrs. Mat George, on their farm some eight miles from Linn Creek, in Camden county. On the day of the commission of the alleged crime the prosecuting witness was about 13 years and 10 months old. On that day the father and mother of prosecutrix went to the town of Linn creek early in the morning, leaving prosecutrix and her younger sister, Pearl, at home. The parents did not return until about sundown. The defendant, who is the uncle of prosecutrix, came to the house and sent Pearl to the spring to get some water. Pearl was a small girl, and was not very bright. During her absence defendant took prosecutrix to the bed and had sexual intercourse with her. This was the second time defendant had sexual intercourse with prosecutrix, but she made no complaint of the former act. On the 28th of January following this last act, the prosecuting witness told her father and mother and older brother, and the defendant was arrested. Before the arrest of the defendant he had conversations with one Robert Jeffries and Arthur Smith in which the defendant clearly indicated that he was having sexual intercourse with one of Mat George's girls. The defendant took the witness stand in his own behalf, and denied ever having sexual intercourse with prosecutrix. He also denied the conversations with state's witnesses Jeffries and Smith. There were other witnesses introduced by the defendant who testified that the father of prosecutrix tried to get the defendant to pay some money to drop the case against him, and also tried to get defendant to leave the farm and leave the father of prosecutrix cultivate the same. Some of these witnesses, however, admitted that they were not on friendly terms with the father of the prosecuting witness. There was other testimony introduced by the defendant which tended to show that the prosecuting witness was more than 14 years old at the time of the commission of the crime charged, and that her reputation was not good. In rebuttal, the state proved by a lady witness, who was present at the birth of prosecutrix, that the prosecuting witness was born January 25, 1891. The father of prosecutrix testified, and he contradicted the statements made by witness for the defendant that he was trying to get defendant's relatives to pay him to drop the prosecution, and this witness claimed that such relatives sought him and tried to get him to accept money for that purpose.

This is a sufficient indication of the facts developed upon which this case was submitted to the jury, and to enable us to determine the legal propositions involved in this cause. At the conclusion of the evidence the court instructed the jury, and the cause was submitted to them. The instructions upon which appellant predicates assignments of error will be given attention during the course of the opinion. The jury returned a verdict finding the defendant guilty as charged in the information, and assessed his punishment at imprisonment in the penitentiary for a term of five years. Timely motions for a new trial and in arrest of judgment were filed, and by the court overruled. Judgment and sentence was entered of record in conformity to the verdict returned, and from this judgment the defendant prosecuted this appeal, and the record is now before us for consideration.

N. B. Yandon, Barney Reed, and E. M. Carter, for appellant. Herbert S. Hadley, Atty. Gen., and N. T. Gentry, Asst. Atty. Gen., for the State.

FOX, P. J. (after stating the facts as above).

The record before us discloses numerous complaints of error on the part of the trial court which are embraced in the motion for new trial.

1. The complaint of the appellant as to the instructions given to the jury is limited to two, Nos. 3 and 4. Those are the only declarations of law to which the attention of the trial court was directed in the motion for new trial, hence they are the only declarations which are before us for review. Instructions 3 and 4 complained of were as follows: "(3) Although you may believe that the defendant had sexual intercourse with Ida Florence George, yet unless you shall further believe that at the time he did so she was under 14 years of age, the defendant should be acquitted. (4) If you believe that the defendant had sexual intercourse with Ida Florence George at a time when she was under 14 years...