State v. Hurlbut
| Decision Date | 28 May 1926 |
| Docket Number | 26996 |
| Citation | 285 S.W. 469 |
| Parties | STATE v. HURLBUT |
| Court | Missouri Supreme Court |
J Francis O'Sullivan and Isadore Rich, both of Kansas City for appellant.
North T. Gentry, Atty. Gen., and W. F. Frank, Asst. Atty. Gen.. for the State.
Statement.
On August 8, 1925, an information was filed in the circuit court of Jasper county, Mo., which, without caption and jurat, reads as follows:
'Roy Coyne, prosecuting attorney, within and for the county of Jasper, in the state of Missouri, upon his oath, informs the court and charges that on or about -- day of March, 1925, in the county of Jasper and state of Missouri, Marcus L. Hurlbut in and upon one Marjory Hurlbut, a female child under the age of sixteen years, to wit, of the age of fourteen years, unlawfully and feloniously did make an (d) assault and her the said Marjory Hurlbut, then and there unlawfully and feloniously did carnally know and abuse; against the peace and dignity of the state.'
'Roy Coyne, Prosecuting Attorney within and for the County of Jasper and State of Missouri.'
Defendant was formally arraigned and entered his plea of not guilty. He was put upon trial before a jury and, on October 1, 1925, the latter returned into court the following verdict:
On October 6, 1925, the record recites that, for cause shown, defendant was granted leave to file his motion for a new trial on or before October 9, 1925. On the date last mentioned the motion for a new trial was filed, and is set out in the bill of exceptions as pages 71, 72. On October 31, 1925, the motion for a new trial was overruled. Thereafter, on the same day, judgment was rendered and sentence pronounced in conformity with said verdict. At the same time defendant was granted an appeal to this court.
On February 3d, the bill of exceptions was filed in the circuit court, and a transcript containing the record entries and copy of the bill of exceptions was filed herein on February 5, 1926.
State's Evidence.
The evidence on behalf of the state is substantially as follows: Marjory Hurlbut, the prosecutrix, testified she was 14 years of age at the date of trial and was the daughter of defendant; that her mother was dead and she had been living with her father at 617 West Seventh street in Joplin, Mo.; that she and her father had four furnished rooms; that on the evening of March 18, 1925, he had sexual intercourse with her in her room and on her bed; that he had intercourse with her on the 12th and 15th of March, 1925, in her room; that on March 18, 1925, when her father had intercourse with her, his private was inserted into hers; that the same was also true on March 12th and 15th; that shortly after March 18th her father went to Kansas City, Mo., and from there to Emporia, Kan.; that she remained in Joplin; that for the past few months she had been residing at the State Industrial Home at Chillicothe, Mo.; that she was familiar with her father's handwriting; that the State's Exhibits A, B, and C are all in the handwriting of her father; that the letter inclosed in Exhibit C was also in the handwriting of her father.
On cross-examination Marjory Hurlbut testified substantially as follows: That she was 14 in November preceding the trial in October, 1925; that she was born in Chicago, Ill.; that she had a sister in Chicago; that she had two brothers, one was in South Dakota and the other in California; that her sister is married; that she (Marjory) was the youngest of the family; that she was two years old when her mother died in Colorado of tuberculosis; that, after her mother's death, her father took her back to Chicago where she was located with her aunt; that her father was a telegraph operator and had been for years; that she lived with her aunt in Chicago off and on for 5 or 6 years; that she was 13 years old when she left her aunt; that her father came from Macomb, Ill., to Joplin, and left her in the country near Macomb, where a home was provided for her at a dairy farm; that her father took her away from the dairy farm after she had been there two or three weeks; that he took her away from there because she had trouble with one of the boys; that the boy's mother notified her father that he had better come and take her away, which he did, and placed her in the home at Joplin above mentioned; that her father sent her money from Emporia, Kan., to live on; that she was arrested on the street at Joplin, while her father was away, and put in jail; that her father paid the rent on the rooms where they lived; that he left her at Joplin to go to school, and selected a place where she could get her meals; that she was arrested about midnight on Main and Third streets of Joplin; that she was then 14 years of age; that, after the trouble with the boy at Macomb, her father talked to her, and told her he was going to send her to a home for girls, if she did not do better; that she did not like what he said, and it made her mad; that she did not tell her father she would send him to a home; that she was not mad the night she was arrested and taken to jail; that she got in a good humor with her father shortly before he left Joplin; that she was sent to the Industrial Home for Girls, for street-walking and having no place to go; that they did not tell her her father was having it done; that she did not think her father was having it done, or that he had anything to do with it; that she did not want to go to a home; that she understood what her father meant when he threatened to send her to a home for incorrigible girls, and it made her mad; that she is sure she did not tell her father she would get even with him; that after finding out her father did not have her sent to Chilicothe, she said she would tell the truth about it; that she told the lady who brought her to Joplin to testify, that she would change her story; that her escort told her they had too much on her to change her story, that they would send her up to the reformatory for a longer time; that after being told that she testified against her father; that she believed what her escort said. She further testified:
She further testified in substance that she never received any letters from her father; that they were intercepted by the jailer. She was then asked by counsel for defendant if she had ever said to any one her father's private parts were inserted into hers. She said she did not say exactly that, but said he had not inserted enough to do any harm; that this statement was true.
On re-examination she said she told the above to the prosecuting attorney; that her father did not discharge in her; that her father inserted his private part far enough into her so she could feel it.
John M. Belknap, a witness for the state, testified in substance that he was deputy sheriff and jailer at Joplin; that he intercepted, and identified, said Exhibits A, B, and C, which are in the handwriting of defendant.
The state then offered in evidence, without objection, said Exhibits A, B. and C.
Exhibit A is a letter addressed to Mrs. Ethel Morrow, at Macomb, Ill., dated at Carthage, Mo., August 14, 1925, and signed by defendant's initials, M. L. H. Among other things, Exhibit A contains the following:
(Italics ours.)
Exhibit B, read in evidence by the state without objection, is a letter from defendant to Marjory Hurlbut, at Chillicothe, Mo. It is dated at Carthage, Mo., September 7, 1925. It is addressed: 'Dear Babe.' He informed her that he was going to see his mother, who was old and weak; that it would nearly kill her if he were not set free. He then urges his daughter as follows:
* * *'
State's Exhibit C, read without objection, is a letter signed by defendant, dated at Carthage, Mo., September 3, 1925, and addressed to 'Frances H. Werner, Bushnell, Illinois, 245 Dean street.' Among other things, it recites that:
'You know that Marjory cannot answer your letters. The only person she can write to is her aunt. That's what her aunt wrote to you. But Marjory did tell her aunt to write to you in her place, you know. Believe me, pet, marjority will like you a whole lot more when she gets out. By that time she will understand how much you have done to make my life pleasant. She knows it now, but she don't understand it yet. I believe from what she wrote to her aunt...
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