State v. Jones

• Decision Date: 12 December 1905
• Citation: 90 S.W. 465,191 Mo. 653
• Parties: STATE v. JONES.
• Court: Missouri Supreme Court

90 S.W. 465

191 Mo. 653

STATE v. JONES.

Supreme Court of Missouri, Division No. 2.

December 12, 1905.

1. ABDUCTION — TAKING FEMALE FOR CONCUBINAGE — INFORMATION — SUFFICIENCY.

An information, under Rev. St. 1899, § 1842, making it an offense to take a female under the age of 18 years from her father or guardian for the purpose of concubinage, which alleges that defendant, at a certain county and on a certain day, did then and there unlawfully and feloniously take prosecutrix, a female under the age of 18 years, from her father, who had legal charge of the person of prosecutrix, without the consent of her father, and for the purpose of concubinage, was sufficient.

2. SAME — EVIDENCE — REPUTATION OF PROSECUTRIX.

Where, in a prosecution for abducting a female for the purpose of concubinage, witnesses testified to the improper and promiscuous association of prosecutrix with men, and to admissions by her of sexual intercourse with other men than defendant, there was a sufficient assault upon the character of prosecutrix to justify the introduction of rebuttal evidence by the state as to the good reputation of prosecutrix.

3. CRIMINAL LAW — APPEAL — MATTERS PRESENTED FOR REVIEW.

The action of the trial court in refusing to give an instruction requested by defendant in a criminal case is not before the Supreme Court for review, where the instructions do not appear in the bill of exceptions, which expressly recites that the court gave the instructions prayed for by defendant but appear only in the transcript, and there is nothing in the record to disclose any objection or exception to the refusal of instructions offered by defendant, or that defendant even requested any instructions.

4. SAME — REVIEW OF FACTS.

Where there is substantial evidence to support the verdict in a criminal case, and the record discloses no indication that the conclusions reached were the result of passion or prejudice, such verdict will not be disturbed on appeal.

5. ABDUCTION — TAKING FEMALE FOR CONCUBINAGE — EVIDENCE — SUFFICIENCY.

Evidence held sufficient to support a conviction, under Rev. St. 1899, § 1842, of taking a female under the age of 18 years from her father for the purpose of concubinage.

Appeal from Circuit Court, Scotland County; E. R. McKee, Judge.

Albert R. Jones was convicted of taking a female under the age of 18 years for the purpose of concubinage, and appeals. Affirmed.

This cause is here upon appeal by the defendant from a judgment of conviction in the Scotland county circuit court of a charge for taking away from her father one Cora Smith, a female under the age of 18 years, for the purpose of concubinage. The charge upon which this conviction is based is thus made by the prosecuting attorney in the information filed on March 18, 1903: "Now comes Calvin H. Hilbert, prosecuting attorney within and for Scotland county, Missouri, and under his oath of office informs the court, and charges that Albert R. Jones, at the county of Scotland and state of Missouri, on the _____ day of October, A. D. 1902, at the county and state aforesaid, did then and there bring one Cora Smith, a female person under the age of eighten years, to wit, sixteen years old, unlawfully and feloniously take from one Solomon Smith, her father, he the said Solomon Smith, then and there having the legal charge of the person of the said Cora Smith without the consent and against the will of the said Solomon Smith for the purpose of concubinage, by having illicit sexual intercourse with him, the said Albert R. Jones, against the peace and dignity of the state." The information was duly signed and verified as provided by law. Upon the trial of this cause, the state's evidence tended to show that Miss Cora Smith was born on the 10th day of July, 1886, and was therefore 16 years of age at the time of the commission of the alleged offense. This fact was proven by her father, mother, and some neighbors, who remembered the place and the time of her birth. A family record was also introduced in evidence; but it was kept in an unsatisfactory manner, but went to the jury for what it was worth. In September, prior to her taking away, Solomon Smith, father of the prosecutrix, resided on a farm some miles from Memphis, in Scotland county. With his consent, prosecutrix came with her mother and two younger sisters to Memphis to visit the family of her uncle during the county fair, and to obtain domestic employment, if possible. While at the home of her uncle, she came in contact frequently with defendant, who also temporarily lived at that home. Defendant was a cousin of prosecutrix, but had been acquainted with her less than one year. Defendant was a cement and tile workman; his business requiring him to be away from home most of the time. His wife and four children lived at Plymouth, Ill., and defendant called Plymouth his home. While living at the same house with prosecutrix, defendant had sexual intercourse with her on one occasion. Defendant afterwards stated to prosecutrix that he had received a letter from a friend saying that a good position could be secured for a house girl in Keokuk, Iowa. So defendant asked and urged her to go. After being assured that friends would meet her at the train, prosecutrix consented to go and did go; defendant furnishing her with $1.50. However, defendant persuaded her to go first to Plymouth, Ill., and met her at the depot, taking her to his own house. There prosecutrix met defendant's wife and remained a short time. Afterwards prosecutrix and defendant went to Keokuk, and on the way defendant admitted to her that he had received no letter from his friend, but that he had to go to Keokuk to do some work. When the two arrived in Keokuk, they went to a hotel, where they occupied the same room, and afterwards rented two rooms and lived together for two weeks. Defendant told prosecutrix that he had always wanted her, and now he had her and she must do as he said; that she must say she was his wife, that they had been married three years, and that she was 21 years old. No one occupied the apartments but these two, they sleeping in the same bed and having sexual intercourse frequently. While both of them were walking near the depot one night, they were arrested by the assistant chief of police and taken to jail. At a habeas corpus proceeding held in Keokuk, prosecutrix, at the request of defendant, testified that he had not had sexual intercourse with her, and that defendant did not persuade her to leave her home. Before she so testified, defendant told her that she had better not tell that he was to blame, for if she did death would come and it would not be long. She admitted that her testimony in the habeas corpus proceeding in Keokuk was not true, and claimed to disclose on this trial a true statement of her relations with defendant.

On the part of the defendant there were numerous witnesses introduced whose testimony tended to show that the prosecutrix, Cora Smith, was more than 18 years of age at the time of the alleged commission of the offense, and some of the witnesses who testified said that the prosecutrix had stated to them that she was 18 years of age. Several witnesses also testified that the prosecutrix had said to them, or in their presence, that the defendant had never had sexual intercourse with her and that her pregnancy was the result of an intercourse with another man, a commercial traveler, who resided in St. Louis. Testimony was also introduced showing that the prosecutrix had testified at a hearing upon habeas corpus in Keokuk, Iowa, that the defendant did not have sexual intercourse with her and had always treated her all right. Other testimony was introduced as to statements made by her that the defendant was the best friend she ever had. Defendant testified in his own behalf. He denied having intercourse with prosecutrix and denied furnishing her with any money. He denied showing her any letter, or trying to get her to leave Memphis. He further testified that on his way to Plymouth he stopped off at Keokuk, met prosecutrix and arranged for her to go to his home, there to remain till after her confinement; that this arrangement was made at his wife's suggestion. After remaining at Plymouth for awhile, defendant said that he concluded to move over to Keokuk to see if he could get work, so he took prosecutrix and went on ahead of his family. The reason assigned for taking prosecutrix with him to Keokuk was that she had a cousin in Plymouth and did not want her cousin to know that she was in the family way. Defendant admitted that he and prosecutrix had two rooms in Keokuk, and also that there was only one room that had a bed in it; this, he said, was because he did not want to have any more elaborate apartments than was necessary. He also admitted being arrested at 10 o'clock at night near the depot with prosecutrix, but denied making any threats.

The state in rebuttal offered numerous witnesses who testified to the good reputation of the prosecutrix, ...