State v. Kelley

• Decision Date: 12 December 1905
• Citation: 191 Mo. 680,90 S.W. 834
• Parties: STATE v. KELLEY.
• Court: Missouri Supreme Court

90 S.W. 834

191 Mo. 680

STATE v. KELLEY.

Supreme Court of Missouri, Division No. 2.

December 12, 1905.

1. INFORMATION—SIGNATURE—SUFFICIENCY.

The fact that a prosecuting attorney in signing an information used only the initial of his first name, instead of signing his full name, did not render the information insufficient.

2. CRIMINAL LAW—EVIDENCE—FLIGHT OF DEFENDANT.

Where, on a prosecution for having carnal knowledge of a female of previous chaste character between the ages of 14 and 18 years, there was evidence that defendant intended to leave with the prosecutrix, evidence that, when the warrant was issued, the officers could not locate defendant, but finally found him in another county, was admissible as tending to show that he was concealing himself with a view to avoid arrest until he and prosecutrix could flee the country.

3. SAME—INSTRUCTIONS—REASONABLE DOUBT.

The court instructed that, in order to warrant a conviction, the jury must be satisfied from all the evidence or "lack of evidence" that defendant was guilty, which must be established beyond a reasonable doubt, and immediately thereafter the jury were instructed that the guilt of defendant must be established beyond a reasonable doubt. Held, that the

phrase "lack of evidence," while uncalled for, should be treated as utterly meaningless, and the instruction was not ground for reversal.

4. SAME—ADMISSIONS—LETTERS.

On a prosecution for having carnal knowledge of an unmarried female of previous chaste character between the ages of 14 and 18 years, letters written by defendant to prosecutrix, expressing his affection for prosecutrix and speaking of their intention to live together, were admissible as tending to corroborate prosecutrix's testimony and in the nature of an admission of defendant's criminal conduct.

5. SAME—INSTRUCTIONS.

On a prosecution for having carnal knowledge of an unmarried female of previous chaste character between the ages of 14 and 18 years, it appeared that defendant had been the school teacher of prosecutrix at the time of the offense, and that at his request she had sworn before the grand jury that defendant had never had sexual intercourse with her, and defendant requested an instruction that, inasmuch as she had testified differently before the grand jury than on the trial, she was impeached, and that her testimony would not warrant a conviction. Held, that the instruction was properly refused.

6. SAME—SINGLING OUT TESTIMONY.

The court charged that, though prosecutrix made statements under oath at variance with her testimony, the jury might consider the circumstances, the age of the witness, her condition in life, and relation to the party interested. Held that, in view of the requested instruction, defendant could not complain of such instruction on the ground that it singled out the witness.

7. SAME—LIMITING EVIDENCE.

Where letters were introduced to prove defendant's signature to a letter in evidence by comparison, the offer having been simply to prove handwriting, there was no error in not giving an instruction limiting the effect of the letters offered to prove the handwriting.

8. RAPE—STATUTES—EVIDENCE—SUFFICIENCY.

On a prosecution for having carnal knowledge of an unmarried female of previous chaste character between the ages of 14 and 18, evidence held sufficient to show such chaste character.

9. SAME—EVIDENCE—REPUTATION OF PROSECUTRIX.

On a prosecution for having carnal knowledge of an unmarried female of previous chaste character between the ages of 14 and 18 years, evidence of the general reputation of prosecutrix for chastity is not available.

10. SAME—PRESUMPTIONS.

On such a prosecution, chastity is presumed until the contrary is shown.

Appeal from Circuit Court, Polk County; Asbury Burkhead, Judge.

James E. Kelley was convicted of having carnal knowledge of an unmarried female of previous chaste character between the ages of 14 and 18 years, and he appeals. Affirmed.

Rechow & Pufahl and Johnson & Sea, for appellant. The Attorney General and N. T. Gentry, for the State.

GANTT, J.

On April 28, 1904, the prosecuting attorney of Polk county filed an information in the circuit court, charging defendant with having carnal knowledge of Blanche E. Long, an unmarried female of previous chaste character, between the ages of 14 and 18 years. The alleged criminal act occurred on January 15, 1903. The information was duly sworn to by the prosecuting attorney. After a plea of not guilty, defendant filed an affidavit asking for a change of venue on account of prejudice of Hon. Argus Cox. The application was granted, and Hon. Asbury Burkhead, judge of the Thirty-First judicial circuit, was called into the case. After the overruling of his motion to quash, and granting him a continuance, defendant was put upon his trial at the October term, 1904, and convicted; his punishment being assessed at two years in the penitentiary.

The prosecuting witness testified: That at the time of the commission of the alleged crime she resided with her parents in Polk county, Mo., a few miles north of Bolivar, in the Hayden school district. The defendant was her school teacher for six months, and often accompanied her along the road. That he lived about a quarter of a mile from her father's. The school usually closed every day at 4 p. m. There was a springhouse a short distance from her father's and tolerably close to the public road; the house being surrounded by timber. To this spring she went every afternoon for water, and defendant often met her there about dusk. This was during September, 1902, and January, 1903. At these meetings defendant would hug and kiss prosecutrix, and had sexual intercourse with her several times. Defendant, at the time of professing love for her, told her that he would take her away, and they would be happy together. A short time after this school term closed, defendant moved away, and prosecutrix and her parents moved to Bolivar. Defendant visited them at their home and remained over a night or two with them. Defendant told her not to say anything about their relations, or it would send him to the penitentiary. Afterwards defendant moved to Flemington, and corresponded with her. At defendant's suggestion, she used his postoffice box, No. 335, at Bolivar. She received a letter from him once a week, which she answered. In these letters defendant still continued to tell her of his affection for her. These letters were addressed to "B. E. K., Box 335." A letter written by defendant on January 22, 1904, addressed in that way, was received by prosecutrix, lost by her on her way home from school, found by one of the schoolgirls, and given to her mother. Prosecutrix was unmarried and of previous chaste character. Defendant had a wife, but no children, living at this time. Prosecutrix never told of her intimacy with defendant till some time after this letter was found. She had made arrangements with defendant to go on the train with him to Kansas City the next Sunday; but the letter was lost and found on the Thursday before. Defendant had promised that he would get a divorce from his wife and marry prosecutrix. This promise was made at the time of the first act of intercourse. At defendant's request she swore before the grand jury that defendant never had had sexual intercourse with her. At defendant's request she made an affidavit before the probate judge to the same effect. This affidavit was procured at the request of one of defendant's attorneys, and signed at a time when neither of the parents of the prosecutrix were at home, and signed in the presence of defendant. When her mother was talking with her a few days later, the prosecutrix admitted to her that defendant had had sexual intercourse with her. An affidavit was made before the circuit clerk, and this information was filed. The postmaster at Bolivar testified that box 335 was rented by defendant, and used by him while he lived there. Just before defendant left Bolivar, he rented this box for another quarter and paid the box rent. Letters were frequently received at this postoffice, directed to B. E. K., box 335, and were put in this box. A letter thus directed and sent was identified by prosecutrix and read in evidence. It is as follows:

                          "Flemington, Mo., Jan. 22, 1904
                "My Darling Blanche
                

"I will write you today it is a cold lonesome looking day and oh how I long to be with you darling and have a good time; say Darling I read your sweet letter I got when I was there. You said you tried to think you didn't love me but could not think so. Oh! my Darling I don't try to think I don't love you, for I do love you better than anyone else. Oh! I wish I could be with you as I was last winter yes; I wish I could see your sweet little face coming to meet me as you did last winter when you would meet me at the spring house and put your arms around me and give me a sweet kiss but alas! those dear school days have passed and gone but my love is still is true to you as it was then I dream of you often. I get into trouble sometimes and think perhaps my Darling may go back on me and take another, but I can't believe you will Oh! Darling I have just been thinking about the last night of the Haden school how hard it was to leave you then but Darling it won't be long till we will be together all the time if you stick to me.

"Darling, do stick to me all the time I can see your sweet face in my dreams Oh! the night I was at your house was the happiest time for me for along time. Oh! my sweet little wife, how I love you.

"Darling, I just got your letter and Ada and mother are going to Mr. Franckas. I am glad you are not going because I am not going. Darling don't worry about your things. If you can't get them I can buy more for you, and if nothing happens we will leave in two or three weeks. Your letter was so sweet and you are sweeter...