State v. Marshall
| Decision Date | 09 February 1897 |
| Citation | 39 S.W. 63,137 Mo. 463 |
| Parties | The State v. Marshall |
| Court | Missouri Supreme Court |
Appeal from Chariton Circuit Court. -- Hon. W. W. Rucker, Judge.
Affirmed.
L. N Dempsey and Crawley & Son for appellant.
(1) The evidence in this record does not establish with certainty the age of the prosecutrix, nor does it disclose any fact or circumstance from which her age may be fairly and conclusively deduced. (2) The crime charged was not established. Either the parties "yielded to each other" through the giddy impulse of mutual folly, or else, as frankly stated by the prosecutrix on redirect examination, the transaction between them was merely a bargain, whereby marriage at Christmas was the agreed price to be paid by the boy, in the future, for a commodity to be presently delivered. In either view the prosecution fails. State v. Reeves, 97 Mo. loc. cit 677. (3) The fourth instruction given on behalf of the state is vicious and misleading to the last degree. By the first clause of that instruction the jury are told "that they may find the fact of seduction upon the unsupported testimony of the prosecutrix, Annie Mason," without so much as requiring them to believe her testimony to be true. In effect they are told: "The seduction of Annie Mason is a fact; which fact, you may find to have been sufficiently established by her unsupported testimony, notwithstanding that testimony is flatly contradicted by the testimony of the defendant." (4) The latter part of said fourth instruction given on behalf of the state is equally faulty and misleading. To tell the jury that "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 such contract or promise of marriage, and entitled to more weight with the jury than the testimony offered by defendant," without attempting to tell them what was necessary to constitute such "strong and clear proof," or what was "sufficient to establish such contract or promise," was equivalent to telling them just nothing at all; leaving them to decide for themselves both the law and the facts. State v. Reeves, 97 Mo. 668. This court having already approved an instruction broad enough to cover this phase of the present case, it ought to have been followed. State v. Wheeler, 108 Mo. 665. (5) The state's sixth instruction does not correctly define the word seduce; neither is the word debauch correctly defined in the seventh instruction. (6) The verdict being clearly due to prejudice or passion on the part of the jury, the judgment for that reason should be reversed. State v. Primm, 98 Mo. 373.
R. F. Walker, attorney general, and Morton Jourdan, assistant attorney general, for the state.
(1) The trial judge saw them, noted their conduct, learned their interest, their prejudice, and their feeling, and was of the opinion that the state's testimony had established the guilt of the defendant sufficiently to authorize him in permitting that question to be submitted to the jury, in order that they might say under the instructions given them, whether the defendant was guilty or innocent. State v. Fischer, 124 Mo. 462; State v. Punshon, 124 Mo. 448; State v. Young, 119 Mo. 495; State v. Banks, 118 Mo. 117. (2) The instructions given upon the part of the state are most exceedingly liberal to the defendant. Indeed, it would be very difficult to draft eight instructions more generous to him. (3) Defendant's instructions, as given, were exceedingly liberal, and left no possibility of defendant's conviction as long as the legal presumption of his innocence and reasonable doubt of his guilt could withstand the overwhelming testimony introduced by the state. The fifth correctly defined the term "good repute." State v. Brandenburg, 23 S.W. 1080; State v. Wheeler, 108 Mo. 665; State v. Patterson, 88 Mo. 88. (4) The sixth tells the jury what facts were necessary to establish the seduction of the prosecutrix. State v. Wheeler, supra. (5) The seventh correctly defined "debauch." State v. Wheeler, 108 Mo. 662. (6) The eighth sums up the things necessary to defendant's conviction, and informs the jury as to the punishment to be assessed in event of conviction. Sec. 3486, R. S. 1889. (7) Counsel for appellant criticise the first portion of the instruction, which tells the jury that they may find the fact of seduction upon the unsupported testimony of the prosecutrix. This is in harmony with the authorities. State v. Hill, 91 Mo. 429; State v. McCaskey, 104 Mo. 647.
OPINION
In Banc.
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 eighteen years of age; that she was sixteen years old on the first 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 nine years old. Her aunt told her when she left there that she was nine 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 eighteen and nineteen years of age; that prosecutrix was two 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:
I. 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 eighteen 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 twelve months, one 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 can not 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 C. C. 476.
Prosecutrix was also competent to testify to her own age, subject to cross-examination. State v. Cougot, 121 Mo. 458, 26 S.W. 566, and cases cited.
The supreme judicial court of Massachusetts declares the law on this subject as follows:
...
To continue reading
Request your trial