State v. Hesterly

• Decision Date: 17 November 1903
• Citation: 76 S.W. 985,178 Mo. 43
• Parties: THE STATE v. HESTERLY, Appellant
• Court: Missouri Supreme Court

76 S.W. 985

178 Mo. 43

THE STATE v. HESTERLY, Appellant

Supreme Court of Missouri, Second Division

November 17, 1903

Appeal from Howell Circuit Court. -- Hon Argus Cox, Special Judge.

Cause remanded (with directions).

Green & Clark for appellant.

Edward C. Crow, Attorney-General, and C. D. Corum for the State.

FOX, J Burgess, J., absent.

OPINION

FOX, J.

At the January term, 1903, of the Howell Circuit Court, the prosecuting attorney of said county filed against appellant his information consisting of two counts; the first charging him with carnally knowing one Anna Byers, an unmarried female of the age of sixteen years, of previous chaste character and the second count charging him with defiling the said Anna Byers while she was confided to the care and custody of appellant as a pupil in the school of which appellant was the teacher.

The cause coming on for trial on the 24th day of March, 1903 before Hon. Argus Cox, judge of the Eighteenth Judicial Circuit, sitting as special judge, with a jury, defendant, appellant herein, filed his application for a continuance, to which the prosecuting attorney filed his counter-affidavit, and appellant filed his rejoinder, thereto. The application for continuance was overruled.

Whereupon, the State entered a nolle prosequi to the first count in the information. The defendant was then arraigned on the second count in the information and entered a plea of not guilty thereto. A trial was held which resulted in a verdict of the jury finding the defendant guilty and assessing his punishment at imprisonment in the penitentiary for a term of five years. To reverse the judgment and sentence defendant, appellant herein, brings the cause to this court on appeal.

The amended information upon which defendant was tried, omitting caption, is as follows:

"M. E. Morrow, prosecuting attorney, within and for the county of Howell, in the State of Missouri, informs the court that on the -- day of December, A. D., 1902, at the said county of Howell, one William Hesterly, a male person, then and there over the age of sixteen years, to-wit, of the age of twenty-eight years, in and upon one Anna Byers, an unmarried female of previous chaste character, between the ages of fourteen and eighteen years of age, to-wit, of the age of sixteen years, did then and there, willfully, unlawfully and feloniously make an assault, and her, the said Anna Byers, then and there willfully, unlawfully and feloniously did carnally know and abuse; against the peace and dignity of the State.

"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 eighteen years, to-wit, of the age of sixteen 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."

It will be observed that the defendant was convicted upon the second count of the information.

The following verdict was returned by the jury: "We, the jury, find the defendant guilty as charged, and assess his punishment at five years in the penitentiary."

The State having dismissed as to the first count in the information, there was left only one charge upon which the defendant was tried and convicted. The verdict of the jury was correct in form, when they say "guilty, as charged;" it could only have application to the only remaining charge against him, as contained in the second count of the information.

The judgment rendered in this cause is as follows:

"Now at this day comes the prosecuting attorney for the State and also comes the defendant herein, in person, in the custody of the sheriff of this county, and in presence of his attorneys and counsel in open court, whereupon the said defendant is informed by the court that he, Will Hesterly, having been found guilty of statutory rape by jury trial as charged in the information, and his punishment assessed at five years in the penitentiary for said offense, and being now asked by the court if he had...