State v. Kavanaugh
| Decision Date | 17 March 1896 |
| Citation | 33 S.W. 33,133 Mo. 452 |
| Parties | The State v. Kavanaugh, Appellant |
| Court | Missouri Supreme Court |
Appeal from Harrison Circuit Court. -- Hon. Paris C. Stepp, Judge.
Affirmed.
Sallee & Goodman for appellant.
(1) There is no evidence to sustain the verdict. The prosecutrix was never in the care, custody, or employment of defendant. State v. Sibley, 132 Mo. 104, dissenting opinion of Judge Sherwood; State v. Arnold, 55 Mo. 89. Criminal statutes should receive a strict interpretation as against the state. 1 Blackstone's Com., side pp. 87, 88; U.S v. Wilterberger, 5 Wheat. 76; 1 Bish. Crim. Law, sec 256. (2) On the trial the state was permitted to prove against the objections of defendant, who at the time duly excepted, that he had procured and administered to her drugs, with the intention of producing miscarriage. In this there was manifest error. State v. Reavis, 71 Mo. 419; State v. Turner, 76 Mo. 350; State v. Greenwade, 72 Mo. 298; State v. Goetz, 34 Mo. 85; State v. Daubert, 42 Mo. 242; State v. Furline, 19 Mo. 380. Evidence of this kind is sometimes received where it is material to show a guilty knowledge on the part of defendant, or where the two acts are so closely connected that to separate them by the evidence is impossible. State v. Greenwade, 72 Mo. 298; State v. Emery, 76 Mo. 348. But the testimony of the witnesses shows that the supposed procurement of medicines or drugs took place long subsequent to the alleged defilement. (3) The first, second, and third instructions given for the state are erroneous. The second assumed that there was a confidential relation existing between prosecutrix and defendant. It is error for the court to assume that any fact has been proved. State v. Dellehunty, 18 Mo. 331. The third instruction given for the state is clearly erroneous, in that it is a direct comment on the evidence, assuming as it does that the defendant's guilt has been established. It says: "If the jury believe from the evidence that the defendant, after the commission of the crime alleged in the indictment, fled," etc. It would be difficult to conceive of a more flagrant comment on the evidence than is embodied in this instruction. State v. Wheeler, 79 Mo. 366; State v. Dellehunty, 18 Mo. 331. (4) The instructions asked by defendant and refused by the court should have been given. (5) No notice of the special term of court at which defendant was tried was served upon defendant as required by section 3252, Revised Statutes, 1889. It will be conceded that courts have two kinds of extraordinary jurisdiction, that is, as to time and subject-matter, and that in such case all the facts which confer jurisdiction must appear on the record. The ordinary presumption in favor of regularity does not obtain in the case of a court of general jurisdiction exercising a special power. Werz v. Werz, 11 Mo.App. 26; State v. St. Louis, 1 Mo.App. 503; Ells v. Railroad, 51 Mo. 200; Lind v. Clemens, 44 Mo. 54; Leslie v. St. Louis, 47 Mo. 474.
R. F. Walker, attorney general, and Morton Jourdan, assistant attorney general, for the state.
(1) The evidence is ample to sustain the verdict. The girl was of tender years; was the sister-in-law of appellant; was at his house attending to the household duties while appellant's wife was absent, nursing another sister. This is as much a "confiding to his care" as the law contemplates, even though appellant was not paying her wages as a domestic servant. R. S. 1889, sec. 3487; State v. Terry, 106 Mo. 209. The case of State v. Arnold, 55 Mo. 90, is not an authority in this case. Since the delivery of the opinion in the Arnold case the statute has been amended and State v. Young, 99 Mo. 284, has been rendered which virtually overrules the Arnold case. (2) Admission of testimony that appellant administered medicines to the child to produce an abortion, was proper to show that he was the cause of her shame. State v. Young, 99 Mo. 284. Evidence of another offense is not incompetent if it tends to prove the appellant guilty of the crime charged. State v. Myers, 82 Mo. 558; Weed v. People, 55 N.Y. 628; People v. Sessions, 26 N.W. 281, 295; Hope v. People, 38 Am. Rep. (N. Y.) 460. In State v. Sibley, 131 Mo. 519, evidence was introduced that the defendant gave the girl defiled medicine to produce an abortion. While the judgment was reversed, it was not on account of the admission of this testimony, it being clearly indicated by the court that such testimony was admissible. Most certainly, if evidence that a defendant gave the girl defiled money to induce her to leave the country, as in Fred Young's case, supra, is admissible, evidence of an abortion produced by her betrayer should not be excluded. (3) The instructions which are printed in full by counsel for appellant were authorized under the evidence, and fairly state the law of the case. They are not subject to substantial objection, and are sufficient to authorize the affirmance of the judgment herein. (4) Appellant complains that he was not formally notified of the holding of the special term, as required by section 3252, Revised Statutes, 1889. A reasonable construction of this section is that the requirement as to notice is directory; and if not directory, and appellant was not ready for trial, application should have been made for a continuance, and facts stated sufficient to authorize the trial court in continuing the case. It is too late to make objections to a lack of notice for the first time in motions for a new trial, or in arrest; objections of this nature should be made and insisted on at the time.
Division Two: Gantt, P. J. Burgess, J., concurs. Sherwood, J., does not concur. In Banc: Brace, C. J., Barclay, Macfarlane, Burgess, and Robinson, JJ., concurring with Gantt, J., therein. Sherwood, J., dissenting.
In Banc.
DIVISION TWO.
The defendant was indicted in the Harrison circuit court at the May term, 1893, for defiling his sister-in-law, a young girl fifteen years old, and was convicted at a special term of said court in July, 1894, from which he appeals.
The facts are few. The girl's father and mother were dead and her estate was so meager that her guardian obtained homes for her where she could earn her living by doing part of the household work. When she was not thus employed she made her home with her two brothers-in-law, Wm. McGowan and the defendant Kavanaugh. Her guardian, Mr. H. B. Alden, testified that defendant told him the girls, meaning the prosecutrix and another younger sister, were both welcome to come and see his, defendant's, wife whenever they wanted to and that he understood the prosecutrix was making her home with defendant when not employed. Mr. McGowan and his wife testified that the two girls were staying with them until the fourteenth of December, 1892. On that day Mrs. McGowan was confined and Mr. McGowan took the two girls to the defendant's house to stay during her confinement and got the defendant's wife to go home with him to attend his wife. During the night of December 14 the defendant took the prosecutrix from her bed and carried her to his own and had carnal connection with her. Subsequently he had intercourse with her at intervals during the ensuing four or five months, when she was visiting in his house. She became pregnant and he administered medicines to her and used a catheter to produce an abortion. She helped do the house work while she was at defendant's house.
I. Various errors are assigned, but they are all subordinate to the question whether the foregoing facts constitute such a confiding of the girl to defendant's care and protection as to bring the case within the letter and spirit of section 3487, which provides that "if any guardian of any female under the age of eighteen years, or any other person to whose care or protection any such female shall have been confided, shall defile her, by carnally knowing her, while she remains in his care, custody, or employment," he shall be guilty of a felony.
This section has been before this court for construction quite often. The section is nearly coeval with the state.
In the Revised Statutes of 1835, section 9, article 8, page 207, the act concerning crimes and punishments, it appears in these words: "If any guardian of any white female under the age of eighteen years, or of any other person, to whose care or protection any such female shall have been confided, shall defile her by carnally knowing her, he shall * * * be punished," etc.
That section was construed by this court in State v. Acuff, 6 Mo. 54, and it was held that the statute included not only guardians but all other persons to whose care or protection any such female shall have been confided, and the word "of" following the word "or" preceding the words "any other person" must be rejected to render the section intelligible, Judge Tompkins saying, "surely there can be no reason why it is not as criminal and as infamous in several other persons to violate such a trust, as it is for a guardian to do it."
The statute was afterward amended by striking out the word "white" and, as thus amended (1 Wag. Stat., p. 500, sec. 9), came before this court for construction again in State v. Arnold, 55 Mo. 89, and, without noticing or overruling State v. Acuff, it was held that where the married sister of a girl under eighteen years of age requested her father to let the girl go and help her husband plant corn for a day and the girl went and during the day the husband defiled her, it was not such a confiding of her to his care or protection as the statute contemplated; that the person to whom she was confided must either be her guardian or stand in some attitude in which a peculiar or confidential trust was reposed.
In State v. Woolaver, 77 Mo. 103, the...
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