State v. Johnson

Decision Date19 November 1921
Docket NumberNo. 22613.,22613.
PartiesSTATE v. JOHNSON.
CourtMissouri Supreme Court

Appeal from Circuit Court, Sullivan County; Fred Lamm, Judge.

James I. Johnson was convicted of having carnal knowledge of a female of previous chaste character of the age of 17 years, and he appeals. Reversed and remanded.

D. M. Wilson, of Milan, for appellant.

Jesse W. Barrett, Atty. Gen., and Robert J. Smith, Asst. Atty. Gen., for the State.

HIGBEE, P. J.

On August 19, 1919, an information was filed, charging the defendant, then over the age of 17 years, with having, on or about January 6, 1918, had carnal knowledge of thee prosecutrix, May White, an unmarried female of previous chaste character, then of the age of 17 years, The cause was tried on January 10, 1920. The verdict of the jury was: "We, the jury, find the defendant guilty as charged in the information." The court sentenced the defendant to imprisonment in the penitentiary for a period of two years. Defendant appealed. May White lived with her widowed mother in the city of Milan. The evidence for the state tended to prove the facts stated in the information. There was a conflict as to the age of the prosecutrix, the state's evidence tending to prove that she was born March 16, 1900, while the evidence for the defendant was that she was born not later than January 12, 1900. There was evidence tending to prove that she was 18 years of age in September, 1917. The prosecutrix testified that she met the defendant during the holidays in December, 1917, at a picture show; that within two or three days they "became engaged"; that on the evening of January 6, 1918, they had sexual intercourse for the first time; that they failed in the first attempt, on the back stairway of the First National Bank building, after which they went up to the hall at the top of the stairs and accomplished the act. The defendant testified that this was on the evening of January 20, 1918; that she then told him she was 18 years of age on the 12th day of January; that there was "no danger of being caught, as she had been doing that way ever since she was 13." The prosecutrix further testified that he kept company with her for a year, and that as the result of their sexual relations she gave birth to a child; that she knew defendant had been married and had two or three children, but he told her he was a "free" man when, in fact, he was not divorced and had a wife and two children, from whom he was then separated. He afterwards got a divorce and married another woman, whereupon the prosecution was instituted.

1. Appellant contends that section 3248, R. S. 1919, is unconstitutional, in that it deprives the defendant of the right to have his punishment, if found guilty, assessed by the jury. "The right of trial by jury, as heretofore enjoyed, shall remain inviolate." Article 2, § 28, Const. At common law the jury passed on the guilt or innocence of the accused, and the court assessed the punishment. The statute authorizing the court, in its discretion, to fix the punishment is not violative of the Constitution. State v. Hamey, 168 Mo. 167, 67 S. W. 620, 57 L. R. A. 846; State v. Perrigin, 258 Mo. 233, 236, 167 S. W. 573.

2. The second instruction for the state reads:

"The court instructs the jury that if you find from the evidence that, at the county of Sullivan, and state of Missouri, at any time prior to the 16th day of March, 1918, and within 3 years next before the 19th day of August, 1919, the defendant did feloniously assault and carnally know the witness, May White, at the time the assault was charged to have been made, was over the age of 15 years and under the age of 18 years, and that the said May White was, at the time, an unmarried female of previously chaste character, and that the defendant was, at the time, over the age of 17 years, you will find the defendant guilty."

The instruction is unfortunately expressed. If the words "and if they further find" had been inserted after the words "May White" where the name of the prosecutrix first appears, so as to read, "and if they further find that at the time the assault was charged to have been made," etc., it could not be said that the instruction assumed that May White, "at the time the assault was charged to have been made, was over the age of 15 years and under the age of 18 years, and that the said May White was, at the time, an unmarried female of previously chaste character." But as it is written it makes these assumptions. Instructions should never assume controverted facts. Clark v. Railroad, 242 Mo. 570, 608, 148 S. W. 472. They should be so explicitly adapted to the case that the jury cannot fail to understand the law as applicable to the evidence. When the court undertakes to instruct on a question of law for the guidance of the jury the Instruction should guide them fairly. State v. Harris, 232 Mo. 317, 321, 134 S. W. 535. The instruction is also a comment on the evidence a singles out "March " 16, 1918," the date or which the prosecutrix testified she became of age, and gives that date undue prominence, if, indeed, it does...

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