State v. Marshall

• Decision Date: 30 June 1896
• Citation: 36 S.W. 619,137 Mo. 463
• Parties: STATE v. MARSHALL.
• Court: Missouri Supreme Court

36 S.W. 619

137 Mo. 463

STATE v. MARSHALL.

Supreme Court of Missouri, Division No. 2.

June 30, 1896.

SEDUCTION — AGE OF PROSECUTRIX — HEARSAY EVIDENCE.

On a prosecution for seduction under promise of marriage, which by statute can only be committed when the female is under 18 years of age, declarations of an aunt, with whom the prosecutrix, when young, went to live, as to the age of the prosecutrix when she left her, being hearsay, are not admissible to show the age of the prosecutrix. Gantt, P. J., dissents.

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

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

L. N. Dempsey and Crawley & Son, for appellant. The Attorney General and Morton Jourdan, for the State.

SHERWOOD, J.

Indicted for and convicted of the seduction of Annie Mason under a promise of marriage, and his term of imprisonment in the penitentiary affixed at two years, defendant appeals to this court. It will be unnecessary to notice the evidence in detail. Such portions of it as occasion may require will be briefly outlined. The testimony of the girl tends to show that defendant, who at the time had not attained his majority, had become engaged to her some time before the night of the sexual encounter, and that she yielded to him because he renewed his promise to marry her; that he would do so the next ensuing Christmas; and because she loved him and wanted him; and that, influenced by all these things, she "yielded to him." This result of the testimony of the prosecutrix was only obtained, however, after many questions, strictly leading in their character, had been asked her by the prosecuting attorney, who seemed incapable of asking any questions but of the sort mentioned. But before the result aforesaid was reached, on her redirect examination, the prosecutrix admitted, in answer to the prosecuting attorney, that defendant made a bargain with her that if she would yield to him he would marry her the next Christmas. This admission was, however, after much interrogation on the part of the prosecution, so changed by the prosecutrix in her subsequent testimony as to materially qualify her former admission, which, had it remained unaltered, would have defeated the prosecution under the rule laid down in Reeves' Case, 97 Mo. 677, 10 S. W. 614, that the acceptance of a mere offer of marriage, without more, in exchange for sexual favors, would not amount to seduction. Testifying on his own behalf, defendant told a far different story. He denied that he at any time had plighted his troth to Annie, and, though admitting that on the eventful evening he had sexual intercourse with her, yet he testified that there was no seduction about it; that he and Annie merely "met congenial, mingling flame with flame." Under our statute the crime of seduction under promise of marriage can only be committed where the female is unmarried and under the age of 18 years. The testimony of the prosecutrix on the point of her age was extremely unsatisfactory. The trial which resulted in the present appeal occurred at the April term, 1895. A former trial, it seems, had occurred in 1893. 121 Mo. 476, 26 S. W. 562. The prosecutrix testified that she knew nothing about her age; only knew as she had been told; that she was born in Missouri, but removed to Kansas when quite small, and lived with her aunt. Whether her aunt was allied to her by blood or marriage, or what her means and sources of information were as to her niece's age, she does not state, but she says that on the eve of her return to Missouri, to Chariton county, her aunt told her she was 9 years old; but how many years she had remained in Missouri before she became 16 years of age she could not tell. Nor could she tell whether she was 15 or 16 years of age when she was seduced, nor whether it was in 1891 or in 1892 that the seduction occurred. It is true, she states that she was 18 years old on the 1st day of the September next preceding the trial, but how she arrived at this result she could not explain. The testimony of the father of the prosecutrix, who would, it seems, have known the age of his daughter, was shown on cross-examination to be absolutely unreliable. He was unable to give the day, month, or year of his own birth, nor the years of the births of any of his children, nor by whom he was married to his present wife, nor the date of that marriage. He spoke of his daughter's age at a certain time, but, being closely cross-examined, he finally broke down, and in his conscious helplessness exclaimed, "I don't know anything." His wife, however, testified that the prosecutrix told her on her arrival from Kansas that she was 9 years old, and that witness had been married 2 years at that time, and that she would have been married 11 years the 27th of the next month (May); and that, according to this calculation, Annie was 18 years old the preceding September. Such, in substance, is the evidence on the point of Annie's age.

There is no question but that a witness may testify to his own age, but such witness is, of course, subject to cross-examination, in order to ascertain the sources of his information. State v. Cougot, 121 Mo. 463, 26 S. W. 566, and authorities cited. In the case at bar, as already noted, the cross-examination shows that the prosecutrix knew nothing as to her age of her own knowledge; that her information respecting her age at the time of her departure from Kansas for Missouri had been derived from her aunt, then living in the former state. These facts, then, present the question whether such testimony, thus derived, was admissible, or possessed any probative force, in a prosecution for seduction. The authorities are to the effect that such evidence, which would otherwise be hearsay, is confined to the proof of pedigree, and does not include the admission of hearsay to establish birth, death, or marriage when introduced for other purposes than pedigree. 1 Whart. Ev. (3d Ed.) § 209. "We think it entirely clear that from the nature of the case, as well as upon authority, a case of pedigree forms an exception to the general rule as to proof of a particular fact by hearsay, reputation, or tradition. As to what is a case of pedigree, an examination of the question shows that a case is not necessarily one of that kind because it may involve questions of birth, parentage, age, or relationship. Where these questions are merely incidental, and the judgment will simply establish a debt, or a person's liability on a contract, the case is not one of pedigree, although questions or marriage, legitimacy, death, or birth are incidentally inquired of." 1 Rice, Ev. 418. Stephens, when speaking of declarations as to pedigree, says: "Such declarations are to be deemed relevant only in cases in which the pedigree to which they relate is in issue, and not to cases in which it is only relevant to the issue." Steph. Dig. Ev. art. 31. In short, such declarations only become evidence when the fact sought to be established by hearsay is required to be proved for some...