State v. McCullough

• Citation: 71 S.W. 1002,171 Mo. 571
• Parties: STATE v. McCULLOUGH.
• Decision Date: 03 February 1903
• Court: United States State Supreme Court of Missouri

71 S.W. 1002

171 Mo. 571

STATE v. McCULLOUGH.

Supreme Court of Missouri, Division No. 2.

February 3, 1903.

CRIMINAL LAW—APPEAL—EVIDENCE—SUFFICIENCY—NEW TRIAL—NEWLY DISCOVERED EVIDENCE—AFFIDAVITS.

1. Where the evidence in a criminal prosecution is conflicting, the court on appeal will not reverse on the ground of insufficiency of the evidence.

2. Where a motion for a new trial in a criminal case on the ground of newly discovered evidence was supported only by the affidavit of defendant stating that the newly discovered witnesses would not make affidavits because their testimony was incriminating, and they would neither make affidavit nor testify until the offense against them was barred by limitations, the motion was properly denied.

3. An indictment under Rev. St. 1899, § 1838, punishing carnal knowledge of any previously chaste unmarried female between the ages of 14 and 18 years, need not allege an assault, as violence is not an ingredient of the crime under that section.

Appeal from circuit court, Lawrence county; Henry C. Pepper, Judge.

Wesley McCullough was convicted of crime, and appeals. Affirmed.

Landrum & Sizer, for appellant. The Attorney General and C. D. Corum, for the State.

FOX, J.

In this case the defendant was indicted at the February term, 1901, of the circuit court of Lawrence county, in pursuance of the provisions of section 1838, Rev. St. 1899, in which he is charged of being over the age of 16, and that he had sexual intercourse with one Hattie Higbee, an unmarried female of previous chaste character, between the ages of 14 and 18 years. There was a trial upon this charge, which resulted in the conviction of the defendant, and his punishment fixed at 2 years in the penitentiary. From the judgment of the court, this appeal is prosecuted.

The testimony upon the part of the state tends to establish the charge in the indictment. In fact, the defendant admits having intercourse with the prosecuting witness, Hattie Higbee, and bases his defense entirely upon her previous unchaste character. The state introduced evidence of her good moral character, and the defendant introduced testimony in rebuttal of that offered by the state. Upon the question of chastity there is a sharp dispute. This question was fairly submitted to the jury, and they determined it adversely to the defendant.

The motion for new trial only complains of two errors: First, that the verdict is against the evidence and the weight of evidence; secondly, that the court erred in not granting a new trial on the ground of newly discovered evidence.

Upon the first complaint, that the verdict was against the evidence, it is sufficient to say that there was but one disputed question. That was as to previous chaste character. The testimony was conflicting upon that question. The court fairly presented it to the jury by appropriate instructions, and their finding was based upon substantial testimony; and this court will not convert itself into "a trior of the facts," and undertake to find a different result to that of the jury. State v. Williams, 149 Mo. 496, 51 S. W. 88; State...