State v. Miller

• Decision Date: 04 January 1915
• Docket Number: No. 18357.,18357.
• Citation: 172 S.W. 385,263 Mo. 326
• Parties: STATE v. MILLER.
• Court: Missouri Supreme Court

172 S.W. 385

263 Mo. 326

STATE v. MILLER.

No. 18357.

Supreme Court of Missouri, Division No. 2,

January 4, 1915.

1. CRIMINAL LAW (§ 761) — TRIAL — INSTRUCTIONS — ASSUMED FACTS — COMMENT ON EVIDENCE.

In a prosecution for rape, an instruction that each act of intercourse constitutes a distinct and separate crime, and that the state cannot prosecute defendant for more than one offense, and, having elected to prosecute on the evidence as to the first act of intercourse, the jury could not convict on evidence as to either the second or third act, was not objectionable, as assuming that there were three acts of intercourse, or as a comment on the evidence.

2. CRIMINAL LAW (§ 678) — EVIDENCE — OTHER ACTS OF INTERCOURSE — ELECTION.

Where defendant made no demand that the state elect one particular act of intercourse on which it would rely for a conviction until after all of the evidence was in, and it then elected to rely on the first act, the admission of evidence as to the other acts was not error.

3. RAPE (§ 52) — EVIDENCE — WEIGHT.

In a prosecution for rape on an unmarried female child under 14 years of age, evidence that a child was born to her is conclusive evidence that a crime had been committed.

4. RAPE (§ 59) — TRIAL — INSTRUCTIONS — INCLUDED OFFENSES.

Where the evidence showed that, if any offense had been committed, it was rape, instructions as to lower offenses held properly refused.

5. DEPOSITIONS (§ 89) — ISSUES — ABSENCE OF WITNESS.

A party desiring to use the deposition of a witness must show that the witness resides out of the county where the trial occurs.

6. CRIMINAL LAW (§ 1171) — MISCONDUCT OF PROSECUTING OFFICER — ARGUMENT.

In a prosecution for rape, the prosecuting attorney stated in argument: "If you do not convict this man, you ought never to be allowed to sit on another jury in Grundy county. There'll be no use of prosecuting boot-leggers in this county, because these lawyers will make these kind of defenses for them." After objection, counsel continued: "This man deserves the severest punishment. He tried to get his wife to be a prostitute, and to sell herself to the lust of other men; and his children" — On objection the court merely stated that he did not remember any testimony of that kind, and directed counsel to keep within the record. Held, that such argument constituted prejudicial error.

7. RAPE (§ 59) — ACTS OF INTERCOURSE — ELECTION — INSTRUCTIONS.

Where, in a prosecution for rape, there was evidence of several acts of intercourse, and the state, on defendant's demand, elected to rely on the first act for conviction, instructions authorizing the jury to convict, if they found that defendant had carnal knowledge of prosecutrix at any time, were erroneous.

Appeal from Circuit Court, Grundy County; George Hall, Judge.

Sylvester Miller was convicted of carnally knowing a female child under 14 years of age, and he appeals. Reversed and remanded.

Defendant was charged with carnally knowing Minnie Bell Woods, a female child under the age of 14 years. The jury convicted him, and fixed his punishment at 15 years in the penitentiary.

Frank Woods and wife, the parents of Minnie, were married at Trenton, Mo., and lived there at intervals. They had lived in St. Joseph about a year prior to October, 1912. They had six children, and were so poor that the children seldom had necessary clothing to go to school. The mother could neither read nor write, and was a mother before she was a wife. The father was a drunkard, and was in the workhouse in St. Joseph from September 9, 1912, convicted of drunkenness and abusing his wife. James Miller, the father of Mrs. Woods, lived at Trenton. On October 8, 1912, Mrs. Woods and the younger children, including Minnie, went to Trenton; their fare being paid by the city. They moved into a house in Trenton belonging to James Miller. The defendant lived at Trenton, was 46 years old, and had a wife and two small children. He worked in the mines. He and Mrs. Woods were double cousins. Minnie's father did not join the family at Trenton until about October 15th.

Two or three days after Mrs. Woods and the children got to Trenton, Minnie went with the defendant to his house and stayed all night. On the way the defendant gave her a half dollar to buy things to eat. She testified that he told her not to show the money to his wife and that he tickled her hand. Her sister had told her what that meant. She testified that while at defendant's house she showed the half dollar to defendant's wife and told her about the defendant tickling her hand and what it meant. As to that incident the defendant testified as follows:

"I know what my wife said she told her. Q. Do you know whether or not she told her that you had tickled her in the hand and wanted her to go out in the grass? A. I believe I heard my wife say something about that. Q. And that's what caused the separation? A. I think it was."

As a result, the defendant's wife left him at once, and in a few days defendant took up his abode at the Woods home, moving his effects to that place a little at a time during the course of a week or more. About the 18th of October defendant went to a show with Minnie. She testified that on the way back from the show they went to the defendant's house, and that defendant there had sexual intercourse with her; that several days later the carnal act was repeated at the bridge; and that about October 25th it occurred again at defendant's house, whither they had gone for some dishes. About Christmas, Frank Woods had a disagreement with the defendant about their accounts, and the defendant left, going to live again with his wife.

Minnie told no one about defendant's sexual intercourse with her until after a "full term" female child was born to her on July 8, 1913. That child lived about half an hour. Minnie was born July 15, 1901, and was not 12 years old until about a week after her child was born. According to the testimony of Minnie and her mother, neither of them knew that she was pregnant until she was in the throes of maternity. There was no physician present until several hours after the child was born. When the physician came, Minnie told him that the defendant was the father of the child, and he wrote that fact in the report of the child's birth. That report was read in evidence without objection.

One Sigel Speery lived at the Woods home in St. Joseph for a few weeks. He was an old acquaintance and fellow laborer of Frank Woods. The evidence is contradictory as to just when he left the Woods home. While there he went with Minnie to a store about a block distant and bought for her a pair of shoes and some clothes. Minnie and her mother testified that he furnished those articles with money due from him to Mrs. Woods. At a term of the court previous to the trial, Speery furnished Frank Woods with money to enable him to attend the trial of the case. The Woods family moved back to St. Joseph after the birth of the child. Minnie and her mother contradicted each other as to whether Speery slept in the mother's room on the floor, and as to whether the mother drove Speery away from the place; Minnie affirming, and the mother denying.

Samantha Ferguson, Minnie's sister, testified that she (witness) was 16 years old and had been married over 2 years, and that her husband had spent 18 months of that time in the penitentiary, while she was in the House of the Good Shepherd. She testified that she and her husband had notified her mother to never put foot in her house again; that she had gone to the office of defendant's attorney to tell what she knew. She testified that when Minnie was about 9 years old she had seen her sitting on Speery's lap in the presence of the family, and that he had his hand under her dress.

Defendant took Speery's deposition at Trenton January 17, 1914, before the trial began on February 2d. In that deposition he testified:

"Q. Where do you live now? A. Wherever my hat is; I am here to-day, and somewhere to-morrow. Virtually this is my home. I was here all last winter and about three...