State v. Jones, 41778
| Decision Date | 13 June 1950 |
| Docket Number | No. 41778,No. 2,41778,2 |
| Citation | 360 Mo. 723,230 S.W.2d 678 |
| Parties | STATE v. JONES |
| Court | Missouri Supreme Court |
John M. Belisle, Morran D. Harris, and Lee E. Crook, all of Osceola, for appellant.
J. E. Taylor, Attorney General, Frank W. Hayes, Assistant Attorney General, for respondent.
In the circuit court of St. Clair County, Missouri, the appellant was convicted of decoying and enticing Loretta Bernice Webb, a female child under the age of twelve years, to-wit, five years and four months, with the felonious intent to detain or conceal the child from her parent, Mrs. Nellie Webb. The jury assessed his punishment at two years' imprisonment in the penitentiary. Judgment and sentence were pronounced upon appellant in accordance with the verdict.
The evidence on behalf of the State was as follows: Nellie Webb was a widow and she lived in Osceola, Missouri. She had a child by the name of Loretta Bernice Webb, also called Sallie, who was past five years of age. On the night of August 21, 1948, there was a carnival in Osceola on the north side of the square. Mrs. Webb, three children and James Lonnie Loman had been to a picture show. The show was out about 11 o'clock and Mrs. Webb left the children, Sallie, Barbara Fenter and Kenneth Jerry Webb, in custody of Loman while she went to Brown's cafe to relieve her daughter who was working there so she could take the children home and get some rest. When Mrs. Webb left Loman and the children they were in front of Sunderwirth's Store. Sallie Webb and Barbara Fenter left Loman and went across the street to get a drink at the water fountain. Loman and the little boy remained in front of Sunderwirth's Store. In a short time Barbara came back without Sallie and the officers were notified of Sallie's disappearance.
When Logan Berry, the sheriff, received notice that Sallie Webb had disappeared he started a search for her with Ray Pace, the city marshal. He and Pace were in a car and Pete Bell, a special policeman, walked down the sidewalk. They went over by the Baptist Church where they found the appellant's truck parked and saw Sallie Webb jump out of the truck. As we understand the record, the Baptist Church is located a block down the street from the water fountain and a block west of the public square. They found the appellant sitting in the truck and took him into custody. He told the officers that he found Sallie in his truck and told her to get out. The officers turned Sallie over to her older sister. Loman testified that the child was found within six or seven minutes after she left him to go to the water fountain.
This is all the testimony offered by the State except that of Sallie Webb. The appellant contends that her testimony is incompetent on account of her age.
For the purpose of qualification she testified that she remembered the night of the carnival, that she knew what it was to tell the truth and that she must not tell a lie.
She further testified as follows:
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But on cross-examination she testified:
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After the court had ruled that she was qualified to be a witness, she testified that she and Barbara Fenter went to get a drink over at the water fountain by the bank; that the appellant gave her some gum which she threw away; that the appellant took hold of her hand and led her down to his truck and lifted her up into the truck; that he put his hand on her dress; and that appellant told her to get out of the truck and that she jumped out of the truck at the time the sheriff's car was coming down the street. On cross-examination she repeatedly testified as follows:
There was testimony that Knight's Drug Store and Sunderwirth's Store were on the same corner.
At common law there was no presumption that an infant under the age of fourteen years had sufficient intelligence, discretion and understanding to testify as a witness, and the party offering an infant under fourteen years of age had the burden of proving capacity and, therefore, competency, before such witness was allowed to testify. Section 1895, R.S.M.o. 1939, Mo.R.S.A. Sec. 1875, has lowered that age to...
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