State v. McClain
| Decision Date | 02 February 1897 |
| Citation | 38 S.W. 906,137 Mo. 307 |
| Parties | The State v. McClain, Appellant |
| Court | Missouri Supreme Court |
Appeal from Vernon Circuit Court. -- Hon. D. P. Stratton, Judge.
Reversed and remanded.
Scott & Hoss and Cole, Burnett & Allen for appellant.
(1) The evidence having disclosed that the defilement of the prosecuting witness occurred in Polk county, if it occurred anywhere, defendant's demurrer to the evidence should have been sustained. The venue as laid must be shown by the proof to be in the proper jurisdiction. Constitution, art. 2 sec. 22; R. S. 1889, sec. 3986; State v. McGinnis, 74 Mo. 246; State v. Smiley, 98 Mo. 605. (2) Before defendant could be legally convicted on this indictment, of the charge of defiling the prosecuting witness, it must have appeared that she had been actually confided to his care, or protection, by some person having the power or authority so to do, and the court erred in not so declaring the law. R. S 1889, sec. 3487; State v. Sibley, 132 Mo. 104 (dissenting opinion by Judge Sherwood); State v Buster, 90 Mo. 518. The best definition of confided is, "delivered in trust." (3) Flora Coggin, being a minor, under the testimony, had no power, without the consent of her mother, to legally confide herself to defendant's care and protection. The relation required by section 3487 of the statute is a legal relation, such as guardian and ward, master and servant. (4) Sexual crimes committed without the pale of such legal relation, committed outside of the relation of guardian or ward, or an actual and affirmative confiding to the other person, are cases otherwise provided for by the statute. R. S. 1889, secs. 3480, 3484, 3487; Laws 1895, p. 149. (5) The law which defines a right, a crime, or an incapacity, excludes everything not contained in the definition as completely as if it had used regular words and said that nothing should confer the right, incur the guilt of the crime, or make one subject to incapacity, but the circumstances contained in the definition. State v. Jaeger, 63 Mo. 403; State v. Stewart, 54 Mo. 400; Cottin v. Cottin, 5 Mart. (La.) 99; Bishop, Stat. Crimes, sec. 194; Endlich on Interp. Stat. (1888), p. 454, sec. 329. (6) The court committed error in refusing defendant's instruction "C." The prosecuting witness having been defiled, according to her statement, in Polk county, could not again be defiled there, or elsewhere, by the same person. (7) It was an error to admit the testimony of the witness, Hopwood, to the effect that defendant, while under arrest, admitted he had committed another crime, had "seduced a young girl in Missouri." State v. Tabor, 95 Mo. 585; State v. Martin, 74 Mo. 547; 1 Archbold's Criminal Prac. and Plead. [8 Ed.], p. 385. (8) Defendant was not present in court, but confined in jail, when his motion for a new trial was heard and overruled, when his motion in arrest was heard and overruled, and when the judgment and sentence was rendered. No person indicted for a felony can be tried unless he be personally present during the trial. R. S. 1889, sec. 4191. A trial is not final and complete until verdict is received and judgment entered, and all proceedings had in defendant's absence are erroneous. State v. Braunschweig, 36 Mo. 397. It is necessary that the record show defendant was present; here it shows he was not. State v. Braunschweig, supra, and cases there cited. By express provision of the statute the defendant must be present in court when judgment is rendered. R. S. 1889, secs. 4237, 4238, and 4239. (9) When judgment is found by the appellate court to be erroneous the court must discharge the prisoner absolutely, or remand the case for a new trial. R. S. 1889, sec. 4298; State v. Daniels, 32 Mo. 558; 36 Mo. 397, supra; State v. Barnes, 59 Mo. 154.
R. F. Walker, attorney-general, E. L. Moore, and H. H. Blanton for the state.
(1) The fact that the defendant may have committed the crime in Dade county would be no bar to a prosecution for one committed in Barton county. Although Flora Coggin was unchaste when she entered Barton, yet this is no defense for McClain. When he took her to his home under his agreement with her as to clothing, school, etc., in the striking language of Judge Sherwood, "Unchaste to all the world beside, she must be pure to him." State v. Strattman, 100 Mo. 540; State v. Rogers, 108 Mo. 202; State v. Winningham, 124 Mo. 423; State v. Sibley, 131 Mo. 532. (2) Moreover, in sexual crimes prior acts between the parties are admissible, and it is no valid objection to such evidence that it tends to prove other crimes. State v. Young, 99 Mo. 284. (3) It was not necessary that prosecuting witness should have been confided to defendant's care by some other person having the "power or authority." The girl herself could create the relationship, without the intervention of mother, father, or guardian, by making the contract of hiring, or the relation of care and protection; "the question is, not how the relation was formed, but did it exist in fact?" State v. Terry, 106 Mo. 209-215; State v. Young, 99 Mo. 284; State v. Strattman, 100 Mo. 540. (4) The court committed no error in its rulings on the evidence. (5) Under the authority of numerous decisions in this state, the conversations between defendant and prosecuting witness that in return for her staying with his wife and child at his home and helping them, he would board, clothe, and send her to school until she was married, were amply sufficient to create the relationship contemplated by the statute and charged in the indictment. State v. Lingle, 128 Mo. 528; State v. Sibley, 131 Mo. 519; State v. Kavanaugh, 33 S.W. 33, and 34 S.W. 842; State v. Hill, 36 S.W. 223; State v. Williams, 39 Mo.App. 43. First. It was not necessary that defendant be present when the motion for a new trial was overruled, and on principle the same would seem to be true of motion in arrest. State v. Hoffman, 78 Mo. 256, dissenting opinion of Sherwood, J.; State v. Lewis, 80 Mo. 110; State v. Brown, 63 Mo. 439; State v. Underwood, 57 Mo. 40. Second. The occasion for the ruling in State v. Braunschweig, 36 Mo. 397, cited by appellant, has been obviated by an amendment to the statute. State v. Hope, 100 Mo. 347.
At the January term, 1896, of the circuit court of Barton county the defendant was indicted by the grand jury of said county for defiling one Flora Coggin, a female under the age of eighteen years, who had theretofore been confided to his custody and protection. The venue was on his application changed to the circuit court of Vernon county, where a trial was had at the April term, 1896, of said court, resulting in his conviction, and the fixing of his punishment at imprisonment in the penitentiary at two and one half years. The case is before us for review upon his appeal.
Flora Coggin was fifteen years of age on the twenty-eighth day of October, 1895. She was a poor country girl having lived upon a farm in Dallas county all her life from the time she was a few months old. At the time she disappeared from her home in that county with defendant she was living at home with her widowed mother and a brother about eighteen years of age. The nearest schoolhouse from where she lived was about two and one half miles.
Defendant had formerly lived in Dallas county, and married a lady who was at the time living in that county. He thereafter moved to Lamar in Barton county, where he was living with his wife and child at the time of the alleged offense. He became acquainted with Flora Coggin at the house of a neighbor of her mother whom he was visiting some three years before the trial, but nothing unusual occurred between them at that time. Afterward, he again visited the neighborhood, and called at the house of Mrs. Coggin, told the family of his nice home in Lamar, of his baby, and wanted her mother to let Flora go home with him, stay at his house and go to school. To this arrangement her mother consented, but after she had started with defendant her mother followed, overtook them, and took her back against both her protest and that of defendant.
After that Flora wrote defendant one or two letters asking him to come for her, and in compliance therewith defendant appeared near her mother's house early one morning in the early part of the month of September, 1895, waved and called to her to come to him, "and said he was ready for her to come to Lamar, and for her to get ready if she wanted to go." He took her to his buggy near by, where he had it concealed, and they started across the country to Lamar. Her mother was not at home at the time and did not know that she was going. Defendant promised Flora to board, clothe, send her to school, and take care of her until she was married, if she would stay with his wife and help her about the house.
The night after they started to Lamar they traveled all night in the buggy, and some time during the night while on the road in Polk county, defendant had criminal connection with her. They reached defendant's home in Lamar about dark the next evening, where she remained about six weeks, during which time defendant had intercourse with her from two to three times per week. She became pregnant and defendant undertook to produce an abortion on her by administering to her spirits of turpentine.
About the fourteenth of October, 1895, defendant, his family and Flora, left Lamar, he sending Flora to her grandparents in Hunt county, Texas, from whose place she subsequently returned to her mother's home in Dallas county.
On the sixteenth day of November, 1895, he was apprehended by the sheriff of Barton county, Missouri, at Fort Smith, Arkansas and while aboard a train of cars en route from that place to said county, and while the train was...
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