State v. Kozlickie

• Decision Date: 21 March 1912
• Parties: THE STATE v. LOUIS KOZLICKIE, Appellant
• Court: Missouri Supreme Court

145 S.W. 97

241 Mo. 301

THE STATE v. LOUIS KOZLICKIE, Appellant

Supreme Court of Missouri, Second Division

March 21, 1912

Appeal from St. Louis City Circuit Court. -- Hon. G. C. Hitchcock Judge.

Affirmed.

Chas P. Johnson and Silver & Dumm for appellant.

(1) The court erred in refusing to permit defendant to prove acts of unchasity of the prosecutrix prior to the commission of the alleged offense; and erred in confining defendant to proof of her general reputation. State v. Patterson, 88 Mo 88; State v. Wheeler, 94 Mo. 252; State v. Blize, 111 Mo. 471; State v. Sharp, 132 Mo. 172. Defendant was not confined to the general reputation of the prosecutrix for unchasity. Whether she was of previous chaste character was a vital question in the case. It was necessary for the State to allege it and prove it, and for the jury to find it. Any evidence, therefore, which tended to show that she was unchaste was admissible. Nor, under the general rule and the authorities above cited, was defendant limited to direct proof of unchasity. He could show it by circumstances and by specific acts of lewdness and misconduct. He offered to show it by proving by the witness Burkhart, that she associated with men late at night, and in a manner foreign to a chaste and innocent girl. He was denied the privilege of making this proof, and thereby the court committed error. (2) The instruction requested by defendant should have been given. The court refused to rive it on the ground that it was not warranted by the evidence. If the court erred, as it is insisted it did, in refusing to permit defendant to prove prosecutrix's bad reputation circumstantially and by proof of acts of lewdness and misconduct, then assuredly it erred in refusing to give this instruction. The court could not reject an offer of competent evidence and then refuse an instruction based on such evidence, on the ground that there was no evidence to warrant it. But outside of the testimony offered and rejected, there was evidence to warrant the giving of the instruction requested by defendant. The father of defendant had testified that the girl went out with young men and stayed out as late as one o'clock in the morning; that she associated with men and boys around the bakery. And Mrs. Belgard testified that she had seen the girl out as late as a quarter to twelve, and when questioned about being out at that late hour, the prosecutrix said: "I don't want my mother to know it, and I don't want the boss to know it either." The jury were not told, in the instructions given by the court, what constituted previous chaste character, and how it might be proved or disproved. The instruction requested by defendant submitted this issue to the jury, and it should have been given.

Elliott W. Major, Attorney-General and John M. Dawson, Assistant Attorney-General, for the State.

Appellant requested instruction 4 in which he sought to have the court declare that to establish the unchastity of the prosecuting witness it is not necessary to do so by proof of direct acts of unchastity, but it may be done by any and all acts and statements made by the prosecuting witness from which a reasonable inference of her chastity may be drawn. This instruction was covered under the reasonable doubt instruction, and we think was properly refused.

ROY, C. Blair, C., concurs in the result.

OPINION

ROY, C.

The defendant was charged with having carnal knowledge of Mamie Wesolowski, an unmarried female over fourteen and under eighteen years of age, on April 19, 1910. He was convicted and sentenced to three months in jail and a fine of $ 300, and has appealed.

The evidence showed that defendant was twenty-four years old and single, also very deaf. He was employed by his father in a bakery in St. Louis. The Kozlickie family lived upstairs over the bakery. Prosecutrix was employed in the bakery from the latter part of December, 1909, until July 3, 1910. She arose about five o'clock every morning so as to be ready for her work as sales lady in the bakery, and lived with the Kozlickies, sleeping in the dining room. The defendant occupied the front room upstairs.

The prosecutrix testified to the commission of the offense about the first of April, 1910, the act being repeated at various times until July 3, when she left. She testified that she was fourteen in February, 1910, and that she had been pregnant for seven months at the date of the trial, which was December 16, 1910.

There was testimony by a married sister of defendant that prosecutrix would sometimes be out as late as midnight with men at shows, and when spoken to about it by witness, said "I would not want my mother to know it, and I don't want the boss to know it either."

The sister of defendant also testified that she had seen her at other times with boys standing in front of the bakery as late as ten and half past in the evening; and that most every evening prosecutrix and other little girls would stand around the bakery "making noises and carrying on like children of her age would." That was in pleasant weather.

Defendant's father testified that the prosecutrix went out every other night with John Mitulski, coming back at almost twelve o'clock. It continued from April 15 to May 17.

John Mitulski testified that he first met prosecutrix in May and did not go to the bakery often; that he went with her once to a nickelodeon, and went home with her once from a dance.

During the examination of Louis Burkhart, a witness for defendant, the following occurred:

"Now do you know about the habits of this girl, in going with men, around there?

"Mr. Farrar. I object to him leading the witness. Let the witness state, himself, what he knows about her habits.

"The Court. Objection sustained.

"Q. By Governor Johnson. Do you know of anything --. A. I seen the girl was awful careless with her habits.

"Mr. Farrar. I ask that be stricken out.

"The Court. That will be stricken out. The question is the general reputation of the prosecuting witness for unchastity, and the question ought to be along those lines, Governor Johnson.

"Governor Johnson. I want to get that into the record. I propose to show by this witness and others that this girl was in the habit of going with men late at night, as she has denied; that she associated with men in there; that she associated in a manner which no chaste and innocent girl would do. Now, I propose to show that, not by her general reputation, but by specific testimony of witnesses whom I have here.

"The Court. Well, if you will bring your questions in so that that will be indicated.

"Governor Johnson. If I ask the direct question the objection is that it is a direct question.

"The Court. Go ahead and ask the question.

"Governor Johnson. I have no way excepting by general reputation; and we cannot prove those things by general reputation. We can only prove them by circumstantial evidence.

"Mr. Griffin. Just a minute; Governor Johnson objected to our witnesses testifying to specific acts, my recollection is, when they got on to testify to general reputation; and it seems to me that he is limited to the same rule; and he cannot prove the character of the prosecuting witness by any other facts than by general reputation unless he can show a specific act of intercourse prior to this time with somebody else. If he can, I have no objection to him showing it.

"Governor Johnson: If your Honor sustains...