State v. Hesterly

• Decision Date: 31 May 1904
• Citation: 81 S.W. 624,182 Mo. 16
• Parties: STATE v. HESTERLY.
• Court: Missouri Supreme Court

81 S.W. 624

182 Mo. 16

STATE v. HESTERLY.

Supreme Court of Missouri, Division No. 2.

May 31, 1904.

TEACHER DEFILING PUPIL—CRIMINAL OFFENSE — STATUTES — CONSTRUCTION — TRIAL—CONTINUANCE —DISCRETION OF COURT—HEARING.

1. Rev. St. 1899, § 1845, punishing any guardian of any female under the age of 18 years, or any other person to whose care such female shall have been confided, who shall carnally know her, embraces the relation of teacher and pupil.

2. Rev. St. 1899, § 1845, punishing any guardian of any female under the age of 18 years, or any other person to whose care such female shall have been confided, who shall carnally know her while she remains in his care, prohibits a teacher from carnally knowing a female pupil, under the age of 18 years, at any time and under any occasion during the period of the existence of the relation of teacher and pupil.

3. The ruling on applications for continuance in criminal cases rests largely in the discretion of the trial court, and its action will not be disturbed unless the discretion has been oppressively exercised.

4. On application by accused for a continuance, it is proper to permit the state to present counter affidavits, but oral testimony should not be received.

5. A teacher, on trial for carnally knowing a female pupil under 18 years of age, applied for a continuance on the ground of absent witnesses. The application averred that an absent witness would testify that defendant was not absent from the school grounds at the same time that the prosecuting witness was, except once, when the witness saw the teacher and pupil, and that if anything improper had occurred at that time he would have seen it; that another absent witness would testify that the prosecuting witness admitted to witness that she had had sexual intercourse with a third person, and that she and the third person were setting a trap for defendant: that another absent witness would impeach the prosecuting witness for truth and veracity. Held reversible error to deny the application.

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

William Hesterly was convicted of crime, and he appeals. Reversed.

See 76 S. W. 985.

Green & Clark and Morton Jourdan, for appellant. The Attorney General, for the State.

FOX, J.

On the 15th of January, 1903, the prosecuting attorney of Howell county filed an amended information in this cause. The trial was had upon the second count of the information, which was as follows:

"And M. E. Morrow, prosecuting attorney as aforesaid, further informs the court that on the ___ day of December, A. D. 1902, at said Howell county, said William Hesterly, being then and there a public school teacher in said county, and as such teacher being then and there a person to whose care and protection one Anna Byers, as a student, was then and there confided, did then and there willfully, unlawfully, and feloniously defile her, the said Anna Byers, by then and there unlawfully, feloniously, and carnally knowing her; she, the said Anna Byers, then and there being a female under the age of 18 years, to wit, of the age of 16 years, and she, the said Anna Byers, then and there being and remaining in the care, custody, employment, and protection of the said William Hesterly, against the peace and dignity of the state."

This cause was called for trial on the 24th of March, 1903. The defendant filed the following application for a continuance: "W. S. Hesterly, defendant in the above-entitled cause, being duly sworn, upon his oath states that he cannot safely proceed to the trial of said cause at this term of court, on account of the absence of H. Clinton, Riley Johnson, and Nellie Lesh, who are competent and material witnesses for the defendant in said cause; that said witnesses reside in Douglas county, Mo.; that he believes that he can prove by the said witness Clinton that the prosecuting witness, Anna Byers, is of bad repute for truth and veracity, and virtue and chastity, in the neighborhood in which said Anna Byers lives; that he also will be able to prove by said Clinton that said Anna Byers has been guilty of specific acts of lewdness and immorality; that he will be able to prove by said witness Johnson that said Anna Byers, prosecuting witness, has had sexual intercourse with one George Bundren prior to the filing of the information in this case; that her reputation for virtue and chastity in the neighborhood in which she lives is bad; that he will also be able to prove by said Johnson that he, said Johnson, attended school where this defendant was teaching at the time of the alleged defiling of said Anna Byers, as charged in the second count of the information in this cause, and that said witness will testify that at no time during the term of school was this defendant absent from the school grounds at the same time that said prosecuting witness was absent, except one time that said prosecuting witness went to the post office with defendant, and that at that time said witness Johnson was at a place that, if defendant and prosecuting witness had had sexual intercourse, said witness Johnson could have seen them; that he will be able to prove by said witness Nellie Lesh that said prosecuting witness, Anna Byers, admitted to said witness that she had had sexual intercourse with one George Bundren prior to the filing of the information in this case, and that she and said Bundren were setting a trap for this defendant; that he believes said facts as above set out to be true; that he is unable to prove said facts by any other witness whose testimony can be as readily procured; that said witnesses are not absent by the connivance, procurement, or consent of the defendant; that he caused to be issued out of the office of the clerk of this court, on the 14th day of March, 1903, a subpœna for each of said witnesses, and that said subpœnas were duly served upon said witnesses as follows: On said witness Johnson on the 18th day of March, 1903, and on said witness Clinton on the 20th day of March, 1903, as will more fully appear by the return upon said subpœnas, under oath of this defendant; that said witness Nellie Lesh was subpœnaed at the former term of this court; that since the service of said subpœna upon said witness Nellie Lesh — that is to say, on or about the 21st day of March, 1903 — said Nellie Lesh left this state, going to the state of Washington; that this defendant did not know of such fact until too late to give notice to take the deposition of said witness; that the wife of said witness Clinton is unable for said witness to leave his home to attend court, as will more fully appear by the certificate of her attending physician, Jno. W. Lovan, M. D., hereto attached and made a part hereof; that said witness Johnson is unable to leave his home on account of being sick with the measles, as will more fully appear from the certificate of his attending physician, M. H. Osburn, M. D., hereto attached and made a part hereof; that this application is not made for vexation or delay merely, but to obtain substantial justice on the trial of this cause; and this affiant further saith not."

The physician's certificates, as above referred to, are as follows:

"Roosevelt, Mo. March 21, 1903. To Whom it May Concern: This is to certify that H. Clinton cannot safely leave home on account of his wife. She is now under my treatment and is in a family way and is liable to be confined at any time, and it seems from all appearances that she has now gone the full time. Jno. W. Lovan, M. D."

"Ava, Mo. March 18, 1903. To Whom it May Concern: This is to certify that Riley Johnson is sick at this place with measles, and that it is unsafe for him to leave his room for some days to come; that said patient has just taken said disease and has quite a severe attack. M. H. Osburn, M. D."

The prosecuting attorney filed a counter affidavit, to which the defendant filed a rejoinder. The court seemed to treat the affidavit of defendant, the counter affidavit of the prosecuting officer, and the rejoinder of the defendant as an issue framed for trial, and the state introduced upon that issue a number of witnesses who testified orally upon the matters embraced in the affidavits. Witnesses were examined in chief and cross-examined. The defendant objected to all the oral testimony introduced by the state in resisting the application for a continuance, which objection was overruled, and the state then dismissed as to the first count in the information, and the application of defendant for a continuance was overruled, and the trial proceeded.

The testimony on the part of the state shows that the defendant was the teacher of the public school, and that the prosecuting witness, Anna Byers, by her mother and stepfather, with whom she lived, was sent to school as charged in the information. The testimony shows that there were meetings of a literary society held at the schoolhouse, and that defendant frequently accompanied Anna Byers to those meetings, and the stepfather testified that he understood that the "literary" was a part of the school, and that it was necessary for the pupils to attend. The mother of Anna Byers testified that she was 16 years old in July, 1902. She further testified that it was understood that the "literary" was a part of the school. The defendant had charge of the school; the prosecuting witness was a pupil of the defendant at such school.

Anna Byers, the prosecuting witness, testified: That she was 16 years of age; knew the defendant; attended the school of which he was the principal, as a student; that she attended the literary society on Wednesday nights; that the defendant accompanied her to and from the literary society upon several occasions; that in September, at Hollingshad's house, where the defendant lived, he put his arm around her and asked her if she wanted to have a good time all winter; that she told him she did; that he did nothing further then. She testified...