State v. Hill

• Decision Date: 21 March 1887
• Citation: 4 S.W. 121,91 Mo. 423
• Parties: The State v. Hill, Appellant
• Court: Missouri Supreme Court

4 S.W. 121

91 Mo. 423

The State v. Hill, Appellant

Supreme Court of Missouri

March 21, 1887

Appeal from Moniteau Circuit Court. -- Hon E. L. Edwards, Judge.

Reversed.

Moore & Williams for appellant.

(1) The court permitted the state to offer evidence to support the reputation of the prosecutrix, when it had not been attacked which was error. (2) The instructions on the part of the state, objected to by defendant, ought to have been refused. (a) The first instruction is too general, and is not founded on sufficient evidence. R. S., sec. 1912. There was absolutely no corroborating evidence of a legal character. (b) The third instruction is misleading, and a comment upon the evidence; and it assumes that there are corroborating circumstances in the evidence, corroborating the prosecuting witness as to the main allegations necessary to be proven to sustain the indictment, which is not admitted. Miller v Marks, 20 Mo.App. 369. (c) The fourth instruction is erroneous. It assumes the existence of facts which are denied, and which are not proven, and then proceeds to comment upon evidence in part given, and in part not given (as we contend), but, in any event, contrary to repeated decisions of this court, and to the manifest injury of defendant. State v. Hecox, 83 Mo. 532; Donahue v. Railroad, 83 Mo. 560; Comer v. Taylor, 82 Mo. 341; Wilkerson v. Thompson, 82 Mo. 317; State v. Smith, 53 Mo. 267; State v. Bell, 70 Mo. 633; State v. Breden, 58 Mo. 507; State v. Elkins, 63 Mo. 159; Jones v. Jones, 57 Mo 138. (3) The evidence of Dunbar and McCallister was improperly admitted. Their statements do not tend to support the charge in the indictment, nor do they corroborate the testimony of the girl; and, besides, they only give, under the erroneous rulings of the trial court, a garbled statement of part of a loose conversation between two young men boasting of their amours. (4) The judgment should be reversed because of the remarks of the trial judge to the jury, in reference to agreeing on a verdict. State v. Alexander, 66 Mo. 148, 164.

B. G. Boone, Attorney General, for the state.

(1) The statute only requires the corroboration of the prosecuting witness, as to the promise of marriage. The jury may find the fact of seduction upon the uncorroborated testimony of the prosecuting witness, and corroboration as to the promise is satisfied by proof of the circumstances usually attending an engagement of marriage. R. S., sec. 1912; State v. Brassfield, 81 Mo. 152, and cases cited; Kenyon v. People, 26 N.Y. 203; Boyce v. People, 55 N.Y. 644. (2) The fifth instruction for the state was proper, the statute requiring that it shall be shown the woman seduced was of good repute, and it was proper to instruct the jury as to this evidence. R. S., sec. 1254. (3) The remarks of the trial judge to the jury, as to agreeing on a verdict, constitute no error. They were simply statements as to the course that would be pursued, whether the jury agreed or not. Appellate courts will not consider alleged misconduct of trial judges unless it is supported by affidavit. Lloyd v. Railroad, 53 Mo. 509; State v. Morgan, 1 Mo.App. 22; State ex rel. v. Claudius, 1 Mo.App. 562.

Black J. Norton, C. J., absent.

OPINION

Black, J.

The defendant was indicted for seducing Ida F. Dickson, under a promise of marriage.

1. For a reversal of the judgment, it is contended there is no sufficient corroborating evidence of the prosecuting witness. The statutory offence is; "If any person shall, under promise of marriage, seduce and debauch any unmarried female of good repute, under twenty-one years of age," etc. Section 1912, Revised Statutes, provides: "In trials for seduction, under promise of marriage, the evidence of the woman as to such promise must be corroborated to the same extent required of a principal witness in perjury." From these statutes it is plain to be seen that corroborating evidence is only required as to the promise of marriage, and in that respect to the extent of the principal witness in perjury. In cases of perjury, it is not required that the corroborating circumstances should be equal to a second witness. The additional evidence, it was said in State v. Heed, 57 Mo. 252, need not be such as, standing by itself, would justify a conviction in a case where the testimony of a single witness would suffice for that purpose; but it must be at least strongly corroborative of the testimony of the accusing witness. There must be some evidence, independent of the principal witness; any material circumstance proved by other witnesses, in confirmation of the witness who gave the direct testimony, will be sufficient. Rosc. on Crim. Evid. [6 Am. Ed.] 765. We can, then, apply these guides to cases like the one in hand. Evidence of circumstances which usually accompany the marriage engagement will satisfy the statute as to supporting evidence. State v. Brassfield, 81 Mo. 151. That case, it is true, was overruled in State v. Patterson, 88 Mo. 88, in one respect, but not as to the question now under consideration. Of course, there may be many other circumstances equally efficient, and it is not designed to enumerate them, for in this respect each case must, to a great extent, be its own guide.

Now, Mr. and Mrs. Dickson, the father and mother of Ida, testified that defendant had been waiting on their daughter three or four years; that he and another young man had an oyster supper at their house in December, 1882; that, on an evening in January, following, when the seduction is alleged to have taken place, he and Ida were in the kitchen, after witnesses had retired; that defendant was at their house one or two evenings previous to these occasions, as the suitor of their daughter. There is evidence, too, that he had paid her some attention on other occasions. The prosecuting witness swears, positively, to a marriage promise, made by defendant, on the night they were in the kitchen; and we think the foregoing evidence is sufficient, by way of corroborating circumstances. It is true the visits of defendant were not frequent, and this evidence may all be true, and there have been no promise made to marry the girl, but the circumstances are such as usually attend such engagements. Whether they, and the testimony of the prosecuting witness, outweighed the positive denial of the defendant, was a question for the jury to determine.

2. Two witnesses, young men, testify to two different conversations in which defendant said he had had sexual intercourse with Ida Dickson. Although these conversations occurred when these young men were boasting of their exploits, still it was properly...