State v. Marshall

• Decision Date: 09 February 1897
• Citation: 39 S.W. 63,137 Mo. 463
• Parties: STATE v. MARSHALL.
• Court: Missouri Supreme Court

39 S.W. 63

137 Mo. 463

STATE v. MARSHALL.

Supreme Court of Missouri.

February 9, 1897.

SEDUCTION — EVIDENCE — INSTRUCTIONS.

1. Prosecutrix in seduction can testify as to her own age, though her information may have been derived from her parents or other relatives.

2. An instruction that defendant may be convicted on the unsupported testimony of the prosecutrix is proper.

3. An instruction that evidence of promise of marriage by prosecutrix must be supported by strong proof of facts and circumstances sufficient to establish it beyond a reasonable doubt, and entitled to more weight than the testimony offered by defendant, if erroneous, is not prejudicial to defendant.

4. To seduce under promise of marriage is to draw a woman of good repute from the paths of virtue because of such promise.

5. Prosecutrix was "debauched," where defendant had intercourse with her in connection with such promise.

Sherwood, J., dissenting.

In banc. Appeal from circuit court, Chariton county; W. W. Rucker, Judge.

Isaac Marshall was convicted of seduction, and appeals. Affirmed.

L. N. Dempsey and Crawley & Son, for appellant. R. F. Walker, Atty. Gen., and Morton Jourdan, for the State.

MACFARLANE, J.

Defendant appeals from the judgment of the circuit court of Chariton county, convicting him of the crime of seducing Annie Mason under promise of marriage. The prosecutrix testified to the promise of marriage and seduction. Her father testified that defendant told him of the engagement, and asked his consent to her marriage. A number of her neighbors testified to her previous good reputation. Prosecutrix testified that at the time of the seduction she was under 18 years of age; that she was 16 years old on the 1st day of September, 1892. The alleged seduction was in August, 1893. On cross-examination she said she knew her age from what had been told her by her aunt; that when quite small she was taken to Kansas, where she lived with her aunt until she was 9 years old; her aunt told her when she left there that she was 9 years old. She was unable to state how many years she had lived in Missouri since her return. She was unable to state whether the seduction occurred in 1891 or 1892. John Mason, the father of the prosecutrix, testified that at the time of the trial she was between 18 and 19 years of age; that prosecutrix was 2 years old when her mother died. This witness could not give the dates of the birth of the girl, or of his own birth or marriage, nor could he give the period that had elapsed between any two events.

The fourth, fifth, sixth, and seventh instructions given at request of the state are as follows: "(4) The jury are instructed that they may find the fact of seduction upon the unsupported testimony of the prosecutrix, Annie Mason, but, as to the promise of marriage, her testimony must be strongly corroborated by other testimony sufficient to overcome the oath of the defendant and the legal presumption of his innocence; that is, the testimony of the prosecutrix, Annie Mason, as to the defendant's promise of marriage, must be supported by strong and clear proof of facts and circumstances sufficient to establish said contract or promise of marriage, and entitled to more weight with the jury than the testimony offered by the defendant. (5) The term `good repute,' as used in these instructions and applied to this case, means that Annie Mason, the prosecutrix, at the time of the alleged offense, must have been a woman of good reputation for virtue and chastity, and that she was honestly pursuing the path of virtue. (6) To find that the prosecutrix, Annie Mason, was seduced by defendant, you must find that she was a woman of good repute, and that she was corrupted, deceived, and drawn aside from the path of virtue, which she was pursuing, and that her affections were gained and her thoughts polluted by the defendant in connection with a promise of marriage. (7) The word `debauch,' as used in these instructions and applied to this case, means that defendant had carnal intercourse with the said prosecutrix, Annie Mason, in connection with a promise of marriage."

1. At the close of the evidence the court was requested by defendant's counsel to instruct the jury to return a verdict of acquittal. This the court refused to do, and its action is assigned as error. In support of this assignment, counsel insist that there was no competent and credible evidence that the prosecutrix was at the time of the seduction under the age of 18 years, and the request for that reason should have been granted. It must be admitted that the witnesses who testified to the age of the prosecutrix showed a lamentable want of capacity for carrying dates in the memory, as well as a want of mental ability to calculate the periods between two dates. But these mental deficiencies do not conclusively establish an incapacity to add, every 12 months, 1 year to the age. The age can be correctly kept in the memory when the year of the birth is forgotten, and the various periods of life cannot be calculated. While the father, as a witness, may have shown a great want of intelligence, and, on cross-examination, may have become so confused as "not to know anything," as he acknowledged, still he testified positively, on his direct examination, to his daughter's age. It would be going too far to say, as a matter of law, that his evidence was entitled to no weight at all. It was for the jury, who saw and heard him, to say whether his credibility was destroyed by the cross-examination, or whether his want of intelligence wholly discredited him. Reg. v. Nicholls, 10 Cox, Cr. Cas. 476. Prosecutrix was also competent to testify to her own age, subject to cross-examination. State v. Cougot, 121 Mo. 463, 26 S. W. 566, and cases cited. The supreme judicial court of Massachusetts declares the law on this subject as follows: "The case does not present the question whether a person can be permitted to testify to the precise day of his birth. It is quite clear that one may testify, from his knowledge of himself, whether he is twenty-one or sixteen years of age at a particular time, and that such weight may be given to his testimony as the court or jury trying the case may think it entitled to receive." Hill v. Eldridge, 126 Mass 234. To the same effect, see, also, Cherry v. State, 68 Ala. 30; Cheever v. Congdon, 34 Mich. 297; Comstock v. State, 14 Neb. 207, 15 N. W. 355; State v. Cain, 9 W. Va. 559; Railroad Co. v. Coggin, 73 Ga. 689. According to the testimony of the girl, she was under 17 years of age when seduced. The knowledge she had of herself, without other sources of information, would entitle her evidence to go to the jury for what it was worth. The fact that she had received information from her aunt as to her age does not destroy, as evidence, her testimony based upon personal knowledge of herself. It may have weakened its probative value in the estimation of the jury, or it may not. That was a question for the jury itself to settle. But we do not believe that one testifies from hearsay, strictly speaking, when he states his own age, though his information may...