State v. Hunter

• Decision Date: 09 January 1903
• Citation: 71 S.W. 675,171 Mo. 435
• Parties: STATE v. HUNTER.
• Court: Missouri Supreme Court

71 S.W. 675

171 Mo. 435

STATE v. HUNTER.

Supreme Court of Missouri, Division No. 2.

January 9, 1903.

CRIMINAL LAW—RAPE—STATUTES—CONSTITUTIONALITY — INDICTMENT — ARRAIGNMENT —TIME TO PLEAD—JUDGE'S DISQUALIFICATION—SUBSTITUTION OF JUDGE OF ANOTHER CIRCUIT — RECORD — EVIDENCE — SUFFICIENCY —TRIAL—PASSING CASES.

1. Rev. St. 1899, § 1838, provides that, if any persons over the age of 16 shall have carnal knowledge of an unmarried female of previously chaste character between the ages of 14 and 18, he shall be deemed guilty of a felony, and on conviction shall be punished as therein prescribed. Held, that such statute was constitutional.

2. An indictment that defendant did unlawfully have carnal knowledge of and abuse the prosecutrix was not erroneous because the expression "did carnally know and abuse" her was not used.

3. Where no exception is saved to the ruling of the court denying defendant's request to be given 24 hours in which to plead after being furnished a list of the panel, the denial of such request cannot be reviewed on appeal.

4. A defendant, except in a capital case, is not entitled to 24 hours after service of a copy of the indictment before arraignment.

5. Under Rev. St. 1899, § 2597, authorizing a trial judge, under certain circumstances, to call in a judge from another circuit to try a cause, where a disqualifying affidavit was filed against the judge before whom a case was pending, and the prosecuting attorney and defendant made no selection of another attorney to try the cause, the judge properly requested a judge from another circuit to try the cause.

6. Where a judge requested a judge of another circuit to try a case pending before the former, it was not necessary that the record should recite that no suitable person could or would be elected as special judge to try the cause, it being presumed in support of the order that the judge exercised his right under the constitution to request another judge to hold a part of his term, or that the judge's action was based on Rev. St. 1899, § 2595, authorizing a disqualified judge to call in another judge to try a criminal case where the prosecuting attorney and defendant failed to select an attorney to act as special judge for such case.

7. Evidence held sufficient to justify a conviction in a prosecution for having carnal knowledge of a previously chaste female over 14 but under 18 years of age.

8. Where a judge from another circuit had been called in to try a criminal case specially set for a particular day, the rule of court applicable to the passing of cases on the first call to the foot of the docket had no application to such cause.

Appeal from circuit court, Cass county; Geo. Longan, Judge.

S. R. Hunter was convicted of having carnal knowledge of a previously chaste female over 14 and under 18 years of age, and he appeals. Affirmed.

A. L. Graves and W. D. Summers, for appellant. The Attorney General and C. D Corum, for the State.

GANTT, J.

The indictment in this case was preferred by the grand jury of Cass county on the 3d day of January, 1900. The defendant was tried at the September term, 1900, convicted, and sentenced to the penitentiary for two years. The indictment charged a violation of section 1838, Rev. St. 1899, in that defendant, being over 16 years of age, did have carnal knowledge of one Emma Schrock, an unmarried female of previous chaste character of the age of 16 years. Judge Jarrott, the regular judge of the Cass circuit court, was disqualified by an affidavit of prejudice, and Judge Longan, of the Pettis circuit, was called to try the cause, and presided at the trial. On this appeal defendant assigns numerous grounds for reversal, all of which we have considered.

1. The first goes to the constitutionality of the law which he is charged to have violated, to wit, section 1838, Rev. St. 1899, which was first enacted April 8, 1895. This act has met the approval of this court in State v. Knock, 142 Mo. 515, 44 S. W. 235, and State v. Hall, 164 Mo. 528, 65 S. W. 248, and its constitutionality finally affirmed in State v. Hamey, 168 Mo. 167, 67 S. W. 620, 57 L. R. A. 846, by this court in banc. Those decisions must be regarded as settling the validity of the law.

2. The indictment is assailed because it charges that defendant, at the county of Cass, in this state, "did then and there unlawfully and...