State v. Hamilton

• Citation: 172 S.W. 593
• Decision Date: 04 January 1915
• Docket Number: No. 18377.,18377.
• Parties: STATE v. HAMILTON.
• Court: Missouri Supreme Court

172 S.W. 593

STATE v. HAMILTON.

No. 18377.

Supreme Court of Missouri, Division No. 2.

January 4, 1915.

1. CRIMINAL LAW (§ 1043) — APPEAL — PRESENTING QUESTIONS BELOW — OBJECTIONS TO EVIDENCE — SUFFICIENCY.

An objection to offered evidence that it was incompetent, irrelevant, and immaterial, raises no point for review.

2. CRIMINAL LAW (§ 436) — EVIDENCE — AGE OF PROSECUTRIX — RECORD OF RELIGIOUS SOCIETIES.

Under Rev. St. 1909, § 6297, providing that when by the ordinance or custom of any religious society a register is required to be kept of births, such record shall be admitted as evidence, the record of a religious orphan society incorporated within the state, which the society was required to keep and did keep, and which showed the date of the birth of every child received, is admissible to establish the age of a girl whom defendant was accused of defiling while she was committed to his care.

3. CRIMINAL LAW (§ 678) — INSTRUCTIONS — SPECIFIC ACT.

Where several acts of intercourse were testified to in a prosecution for defiling a girl committed to defendant's care, it was not error to instruct the jury that they might convict if they found that defendant had had intercourse with prosecutrix at any time within three years prior to the finding of the indictment, without specifying any particular act testified to, where defendant made no request that the state be required to elect upon which act it would rely for conviction.

4. CRIMINAL LAW (§ 995) — SENTENCE — UNCERTAINTY.

A sentence which, after reciting the appearances, stated that the defendant, when asked if he had anything to say why sentence should not be pronounced upon him, stood mute, and then ordered that "you" be imprisoned, while ungrammatical, is not uncertain as to the person intended to be sentenced so as to require a reversal of the sentence.

5. CRIMINAL LAW (§ 1184) — APPEAL — CORRECTION OF SENTENCE — STATUTE.

Where defendant was sentenced to imprisonment in the penitentiary, and the judgment thereafter ordered that he be committed to the custody of the sheriff until discharged, the Supreme Court can correct the sentence so as to order the commitment to the warden of the penitentiary, under Rev. St. 1909, § 5316, providing that no judgment of conviction shall be reversed for error as to the time or place of confinement, but the court may correct the judgment.

Appeal from Circuit Court, Clark County; N. M. Pettingill, Judge.

Joseph Hamilton was convicted of defiling a female under the age of 18 years who had been confided to his care and protection, and he appeals. Affirmed.

Upon an information charging him with the crime under section 4479, R. S. 1909, of defiling a female under the age of 18 years, who had been confided to his care and protection, defendant was tried, in the circuit court of Clark county, Mo., found guilty, and his punishment assessed at five years in the penitentiary. Defendant duly perfected an appeal. The evidence on the part of the state tends to establish the following facts: Prior to August, 1910, the prosecutrix was an inmate of the Missouri Baptist Orphan's Home, situated near St. Louis, Mo. On said date said Missouri Baptist Orphan's Home, by its deed, apprenticed prosecutrix to the care and custody of the defendant. Prosecutrix testified that she was 17 years old on the 5th day of December, 1912. She continued to live at the home of defendant from August, 1910, until the latter part of March, 1913. She testified that a part of her duties at defendant's home was to assist in milking the cows in the barn; that defendant first made indecent proposals to her in the summer of 1911; and that in September, 1911, while at the barn, where she had gone to do the milking, she first submitted to him, and at that time defendant had sexual intercourse with her; that she and defendant engaged in other acts of sexual intercourse (the frequency of which is not given) between that time and January, 1913. On January 7, 1913, she gave birth to a child. Defendant had not kept company with any man during the time she lived at defendant's home. Defendant told prosecutrix that if any one should ask her about her condition and who was the cause of it that she should tell them that a "stranger" was responsible for it. On the night of the birth of the child, defendant called at a neighbor's home and requested the neighbor's wife to accompany him home to attend prosecutrix in her sickness. At the neighbor's home, defendant told his neighbor that the prosecutrix was giving birth to a child, and that it was a "bad case," and stated that "he expected it would be laid onto him," to which the neighbor replied, "More than likely it will." The neighbor's wife accompanied defendant to his home, and on the road defendant asked the neighbor's wife what he should do in a case like that. She replied that he should "hunt the owner." She asked him if the girl had been keeping company with anybody, and he replied that he did not know of any company that she had kept and thought she was too young to keep company. He further stated, "In all probability, the gentleman who did that work threatened her life and she won't tell." A day or so after the birth of the child, defendant sent for two or three neighbor women to come to his house. When they reached his home, he requested them to go, one at a time, into the room where prosecutrix was in bed and get a statement from her and to write down what she said and sign the statement. He further stated that he desired that they disclose the information thus obtained to the neighborhood. The ladies refused to take the statement of the girl. After the birth of the child, prosecutrix remained at the home of defendant until March 27, 1913, and during this time stated that a stranger was the cause of her downfall. After she left defendant's home, she changed her statement, and on April 23, 1913, she, in company with others, called at the office of the prosecuting attorney and this prosecution was begun. She stated that she left defendant's home because defendant attempted to induce her to again submit to acts of sexual intercourse. The only testimony offered on behalf of the defendant was his own testimony in which he denied that he had ever had sexual intercourse with the girl.

C. T. Llewellyn and B. L. Gridley, both of Kahoka, for appellant. John T. Barker, Atty. Gen., and Lee B. Ewing, Asst. Atty. Gen., for the State.

WILLIAMS, C. (after stating the facts as above).

I. It is contended that the court erred in admitting, over the objection and exception of defendant, the following evidence: (a) The testimony of prosecutrix as to the several acts of sexual intercourse; (b) the testimony of Mrs. Eilers with reference to the guardianship of prosecutrix; (c) the entry in the register book kept by the Missouri Baptist Orphan's Home stating, in substance, that prosecutrix was born December 5, 1895. As to point "a," it is sufficient to say that the only objection made by appellant to the introduction of that testimony was that it was "incompetent, irrelevant, and immaterial." It is well settled that such an objection raises no point for appellate review. State v. Crome, 209 Mo. 316, loc. cit. 330, 108 S. W. 555; State v. Castleton, 255 Mo. 201, loc. cit. 208, 164 S. W. 492, and cases therein cited. Concerning point "b," the record shows that Mrs. Eilers, the president of the Missouri Baptist Orphan's Home, was asked whether or not said organization was, on July 8, 1907, in the probate court of St. Louis, appointed the guardian of prosecutrix. Appellant objected on the ground that the court records were the best evidence of that fact and the court sustained the objection. This presents no point for review. Concerning point "c," the president of the organization testified that the Missouri Baptist Orphan's Home was a religious society, and that it was required to keep, and that it was...