State v. Hurley

• Decision Date: 09 May 1912
• Parties: STATE v. HURLEY.
• Court: Missouri Supreme Court

146 S.W. 1154

STATE v. HURLEY.

Supreme Court of Missouri, Division No. 2.

May 9, 1912.

1. INDICTMENT AND INFORMATION (§ 87)— TIME OF OFFENSE—RAPE.

As there is no statute of limitations against a prosecution for rape, the time of the offense is not material, and though an indictment charged that the offense was committed "on or about the ____ day of September, 1907," it was sufficient.

2. INDICTMENT AND INFORMATION (§ 202)— AIDER BY VERDICT—TIME OF OFFENSE.

Under Rev. St. 1909, § 5115, which provides that no indictment or information shall be deemed invalid for omitting to state the time of the commission of an offense where time was not of the essence, nor for stating the time imperfectly, it could not be objected after verdict that an indictment for rape, charging the commission of the offense "on or

about the ____ day of September, 1907," was invalid.

3. CRIMINAL LAW (§ 1119)—APPEAL AND ERROR—QUESTIONS PRESENTED FOR REVIEW —STATE OF RECORD.

An assignment of error that it appeared from the opening statement of a prosecuting attorney in a prosecution for rape that he knew, at the time he made his opening statement, that he expected to prove several distinct acts of intercourse, and should have been compelled at that time to elect, will not be considered on appeal, where the record does not contain the opening statement referred to.

4. CRIMINAL LAW (§ 678)—PROSECUTION— TRIAL—NECESSITY OF ELECTION—TIME.

In a prosecution for statutory rape, a failure of the state to elect on which act of intercourse it would stand at the close of the first testimony of the prosecutrix, in which she did not testify in detail as to the various acts of intercourse, was not improper, where an election was made before the close of the state's testimony, and the prosecutrix was recalled to testify concerning the act upon which the state had elected to stand.

5. CRIMINAL LAW (§ 678)—PROSECUTION— EVIDENCE—SUBSEQUENT ACTS—ADMISSIBILITY.

In a prosecution for rape, admitting testimony of the prosecutrix as to acts of intercourse subsequent to that on which the state relied for conviction was not improper, where the admission was before an election had been made, and the court withdrew such testimony from the consideration of the jury.

6. CRIMINAL LAW (§ 1169)—APPEAL—HARMLESS ERROR.

Where, in a prosecution for rape, the jury sentenced the defendant for only seven years upon evidence showing the debauching of a child 11 years of age and the continuance of illicit relations for several years until she became pregnant, admitting testimony of acts of intercourse subsequent to that relied on for a conviction could not have prejudiced the defendant and will not constitute ground for reversal.

Appeal from Circuit Court, Wright County; C. H. Skinker, Judge.

Robert Hurley was convicted of statutory rape, and appeals. Affirmed.

Conviction for statutory rape, committed on the prosecutrix, Bertie Breedlove, under the age of 14 years, in 1906. The indictment was returned in August, 1909, and trial had at the September term of the Wright county circuit court in 1910. Punishment was assessed at seven years in the penitentiary.

The evidence for the state shows that the prosecutrix was born in January, 1894. A few years later the defendant made his home in the house of her parents, coming there as a hired hand. He was treated as a member of the family, and trusted by the parents of the prosecutrix so fully that they frequently left him in charge of the children. The prosecutrix was called to the stand, and told her story. She testified that before she was 11 years of age the defendant was in the habit of holding her on his lap and taking liberties with her person. As she puts it, "He taught it to me that way." She further testified that the defendant had intercourse with her when she was 11 years old; that then, and for some time thereafter, she did not know it was wrong; that this relation continued at various intervals until the last act of intercourse, which occurred July 25, 1908, at which time she became pregnant, and gave birth to a child the following April. The prosecutrix, in this testimony, does not undertake to give the details as to the exact time and place of any particular act of intercourse, except that she fixes the date of the last act as above stated. She also testified that she told no one of the situation until after the birth of the child, when for the first time she stated that the defendant was the guilty party. It appears in evidence that about a week after the birth of this child, and after the prosecutrix had mentioned the defendant, he left the country for parts unknown. The indictment was returned against him, as above stated, and he was subsequently arrested in Oklahoma in 1910, and brought back to Wright county for trial.

Defendant denied all acts of intercourse testified to by the prosecutrix, and testified further that he fled the country because his father and others had advised him to do so, stating to him that, although he was innocent, yet "if she swore the child onto me it would be just the same as if I had had something to do with her." Before any evidence was taken, counsel for the defendant moved the court to require the state to elect upon which act of intercourse it would go to the jury, basing this motion on the statement that the prosecuting attorney, in his opening address to the jury, had stated that he would prove several separate and distinct acts of intercourse. The record, however, does not preserve the address of the prosecuting attorney, and we cannot know what statements were made in this regard.

When the prosecuting witness...