OPINION
HIGBEE, C.
On
February 24, 1925, the defendant was charged by indictment
with statutory rape, in that he, on June 26, 1924. carnally
knew Alma Gruber, then a female child under 16 years of age
to wit, of the age of 15 years. He was tried May 8, 1925
found guilty of rape as charged in the indictment, and
sentenced to imprisonment in the penitentiary for a term of
15 years in accordance with the verdict of the jury, and
appealed.
Alma
Gruber, according to the evidence for the prosecution, is the
only daughter of the defendant. She was born on June 23,
1909, and lived with her father from her birth in a five-room
cottage, with a kitchen in the basement, at 3449 Minnesota
street in the city of St. Louis, until July 4, 1924. Her
brother Frank, a year younger than Alma, lived with them. Her
mother died in the year 1917. A year or more after her
mother's death the defendant remarried. The second wife
lived with the defendant about 3 months, when they were
divorced. Within a year the defendant took unto himself a
third wife, with whom he lived about 3 months.
Alma
testified:
'From
the time I was about 12 years of age the defendant had sexual
intercourse with me about once a week; the last time was a
week before June 26, 1924. He did not bother me much while
the stepmothers were there, but every once in a while he has
bothered me. I went to see Dr. Matilda Tibe. I told father
the doctor told me I was pregnant. He told me not to worry;
that he would get rid of it. Father and I went back to Dr.
Tibe's office. He was there talking to her while I waited
in the waiting room. That was on Wednesday, and on Friday
father and I went to the midwife, Mrs. Fendler. Father had
seen her before that. Father said I should remain there till
the next day, and he would come later. (Here the court
excluded evidence that Mrs. Fendler produced an abortion on
the witness.) I slept with the midwife that night. About 1
o'clock I had cramps, and about 5 o'clock I started
bleeding from my private parts. The baby came. It was about
as big as a kewpie; 5 or 6 inches long. The next evening
father took me home. I stayed in bed a few days, until
Wednesday. I was very weak, bleeding. Friday my aunt, Mary
Gruber, came. She asked what was wrong. I wouldn't tell.
Father came and ordered her out of the house. At 1
o'clock the detectives came and took me to the city
hospital.
'I
knew this was wrong. I didn't tell any one. Father said
if I told any one he would put me in the bad girl's
house. After being taken to the hospital, I was taken to the
house of detention, and was there about a month. I did not
have intercourse with any one but father. I told the police
officers that Dr. Haufmeister was the man I went to. My
father and the midwife told me to say Dr. Haufmeister did it.
What I told the police wasn't true. Father slapped me
once when I cried. That was the last time he had intercourse
with me. He hurt me so bad and slapped me, and told me to
shut up. That was a week before I went to the midwife. That
is the time he hurt me the most. He slapped me at other
times. Father sent me to Mrs. Tibe. I didn't know I was
pregnant until she told me. I told father I was not
menstruating, and he sent me to Dr. Tibe.'
Mary
Gruber, wife of defendant's brother Frank, was at
defendant's house in June, 1924. Alma was dusting
furniture. She was weak and yellow. Blood was dropping down
on her white stockings. Witness testified:
'While I was talking to her, her father came in, and I
said: 'What have you done with that girl, she looks so
sick?' And he said: 'There is the door; if you
don't get out, I will put you out' And I said:
'Joe, I can't go out.' I told him we were going
to take the girl away, and he said nobody can do that, and I
asked him if he thinks he can do that -- that he makes her
sick and bring her to nurses where he brought her to. I was
there half an hour. I saw he was mad. I went to the police
station, and told them the girl is in bad condition.'
Albert
W. Bean, detective, went to defendant's house July 4,
1924, investigated the case, arrested defendant, and took
Alma to the city hospital. The midwife, Mrs. Fendler, was
arrested July 5th or 6th. Bean testified:
'Gruber
took us to her (Mrs. Fendler's) house. Conversed with
defendant at police station. He said he paid her (Mrs.
Fendler) $ 15, and that he also paid Mrs. Fendler's
father in her presence $ 75 for this abortion on Alma Gruber.
We told him his daughter's condition was very serious,
and he said what he done to her was done for her health, to
keep her in a healthy condition; that further than that he
wouldn't like to confess to us; that it was against his
religion to confess to us.'
On
cross-examination witness said he testified at the Three
C's Court; that these questions were asked and answers
given:
'Q.
Did you have any conversation with him? A. We asked him if he
was responsible for this act, and he said he didn't want
to tell us. He said he wanted to tell the priest, and we
asked him if he took her to the midwife, and he said
'Yes'; he took her to a Mrs. Fendler and paid her $
75.
'Q.
Did he say whether he had any connection with his daughter?
A. He wouldn't tell us that; he said he would only talk
to the priest.
'Q.
Did he say why he took his daughter to the midwife? A. He
simply said she was in a family way when he took her; that is
all.'
Witness:
'That
is the testimony I gave down there. I only answered questions
I was asked. She (Alma) said it was Dr. Haufmeister performed
the abortion. We brought Dr. Haufmeister in, and asked her if
she knew him, and she said, 'No,' and we told her it
was Dr. Haufmeister, and she said Mrs. Fendler and her father
told her if the police got hold of her she should say Dr.
Haufmeister was the one that did this.'
The
defendant testified:
'I
never had sexual intercourse with my daughter; the only
trouble I had with her was when I slapped her for staying out
late at night. I remonstrated with her, and once made her
stay home two weeks for that. First I knew Alma was in a
family way. Mrs. Tibe, the doctor lady, told me. Alma was
born July 23, 1909. Her mother died in 1918. I only knew Mrs.
Fendler when Mrs. Tibe sent me there. I took Alma there the
latter part of June. Alma got along pretty good with the
second wife, but not with the third wife. They couldn't
get along. The third wife was there about five weeks. That
was in 1923. She was not there when this trouble commenced.
She was gone. The second wife was there a year and a
half.'
Three
witnesses testified the defendant's general reputation as
a law-abiding man was good.
1. A
brief summary of the evidence has been given. It was the
exclusive province of the jury to determine the weight and
credibility of the testimony. There was substantial evidence
to support the verdict. The court did not err in overruling
the demurrer at the close of all the evidence. State v.
Sharpless, 212 Mo. 176, 207, 111 S.W. 69; State v. Pheiffer,
277 Mo. 202, 213, 209 S.W. 925; State v. Finley, 278 Mo. 474,
213 S.W. 463; State v. Pipkin, 221 Mo. 453, 464, 120 S.W. 17;
State v. Marcks, 140 Mo. 656 (4), 41 S.W. 973, 43 S.W. 1095.
2. The
sufficiency of the indictment is not challenged. It is based
on section 3247 R. S. 1919. It is conceded that the
prosecutrix was born on July 23, 1909, and that she was under
the age of 15 at the time of the last alleged sexual act in
June, 1924. There was substantial proof that the defendant
repeatedly and habitually had sexual intercourse with his
child from the time she was 12 years of age, and that when
in June, 1924, he learned she was pregnant, he told her...
