State v. Kelly

• Decision Date: 13 November 1912
• Citation: State v. Kelly, 245 Mo. 489, 150 S.W. 1057 (Mo. 1912)
• Parties: STATE v. KELLY.
• Court: Missouri Supreme Court

150 S.W. 1057

245 Mo. 489

STATE v.KELLY.

Supreme Court of Missouri. Division No. 2.

November 13, 1912.

1. RAPE (§ 36)—CHASTE CHARACTER OF PROSECUTRIX—PRESUMPTIONS.

The state, on a trial for rape on an unmarried female of previous chaste character, must prove previous chaste character of prosecutrix; and it is error to charge that the law presumes that every woman is of chaste character until the contrary appears.

2. RAPE (§ 43)—EVIDENCE—ADMISSIBILITY.

On a trial for rape on an unmarried female of previous chaste character, the pregnancy of prosecutrix may be proved.

Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

Walter Kelly was convicted of crime, and he appeals.Reversed and remanded.

Farris & Watson, of Rolla, and I. L. McCormack, of Steelville, for appellant.Elliott W. Major, Atty. Gen., and Charles G. Revelle, Asst. Atty. Gen., for the State.

BLAIR, C.

Under an information charging him with carnally knowing an unmarried female of previously chaste character, between the ages of 14 and 18 years, Walter Kelly was convicted in the circuit court of the city of St. Louis, sentenced to six months in the workhouse, and has appealed.

1.As the record stood at the close of the evidence, the only actually contested issue of fact was the previous chastity of the prosecutrix.The trial court instructed, among other things, as to reasonable doubt and the presumption of innocence, and also, over appellant's objection and exception, gave the following: "The court further instructs you that the law presumes that every woman is of chaste character until the contrary appears."

The learned Attorney General frankly concedes the seriousness of the question presented by the giving of this instruction.On the question whether the presumption of chastity obtains in a case of this kind and relieves the state of the necessity of bringing forward, in the first instance, evidence of the previously chaste character of the prosecutrix, the decisions in other jurisdictions are not in accord.This court has heretofore clearly indicated (State v. McMahon, 234 Mo. 611, 137 S. W. 872;State v. McCaskey, 104 Mo. loc. cit. 647, 16 S. W. 511;State v. Hill, 91 Mo. loc. cit. 427, 4 S. W. 121) its view that the previous chastity of the prosecutrix is an element of the offense, under our statute, which must be both charged and proved.Those text-writers and encyclopædists who have expressed an opinion agree this is the sounder and more logical rule (Bishop on Statutory Crimes, § 648;1 Bishop's NewCrim. Proc. § 1106;4 Wigmore on Evidence, § 2528;Am. & Eng. Ency. of Law, vol. 25, p. 240); and an examination of the cases tends only to confirm the accuracy of this conclusion.It is undoubtedly true that the practical universality of chastity among women justly gives rise, in most...