State v. Mitchell

• Decision Date: 26 May 1910
• Citation: 229 Mo. 683,129 S.W. 917
• Parties: STATE v. MITCHELL.
• Court: Missouri Supreme Court

129 S.W. 917

229 Mo. 683

STATE v. MITCHELL.

Supreme Court of Missouri, Division No. 2.

May 26, 1910.

Rehearing Denied June 30, 1910.

1. CRIMINAL LAW (§ 240)—JURISDICTION OF COURT—STATUTES.

Laws 1909, p. 411, changing the terms of the circuit court of a county from October to the third Monday in August in each year, took effect August 16, 1909. A justice of the peace in a preliminary examination on August 10th recognized accused to appear at the August term of the circuit court, and the prosecuting attorney filed on the same day an information. Held, that the circuit court at the August term had jurisdiction of the cause, notwithstanding Laws 1905, p. 133 (Ann. St. 1906, § 2476a), requiring justices of the peace to recognize defendants on preliminary examination in bailable offenses for their appearance on the first day of the next regular term of the circuit court of the county.

2. CRIMINAL LAW (§ 105)—JURISDICTION — OBJECTIONS—WAIVER.

Where accused appeared in the circuit court in person and by counsel, and made no objection to the jurisdiction of the court and announced ready for trial, there was a waiver of objection to the jurisdiction over his person based on the ground that the justice of the peace on the preliminary examination had recognized accused to appear at that term of court instead of a subsequent term.

3. WITNESSES (§ 277)—CROSS-EXAMINATION —EXTENT.

Where accused on trial for seduction referred on his examination in chief to the subjects of promise of marriage and criminal acts with prosecutrix, and undertook to confine the answers to a particular date, the state on cross-examination was properly permitted to examine accused fully on the subjects referred to in his examination in chief.

4. WITNESSES (§ 277) — CROSS-EXAMINATION —EXTENT.

Where accused becomes a witness in his own behalf, his cross-examination must be confined to the matter as to which he testifies in chief; but, as to the matter to which he refers in his testimony in chief, he is subject to cross-examination and impeachment like any other witness.

5. CRIMINAL LAW (§ 1169)—APPEAL—HARMLESS ERROR—ERRONEOUS ADMISSION OF EVIDENCE.

Where accused, on examination by his own counsel, admitted writing at least some of the letters introduced in evidence, the error, if any, in permitting a witness to testify as to the handwriting of accused, was not prejudicial.

6. SEDUCTION (§ 34)—STATUTES—CONSTRUCTION.

Under Rev. St. 1899, § 1844 (Ann. St. 1906, p. 1274), punishing the seduction of any unmarried female of good repute under 21 years of age, under or by promise of marriage, one who promises to marry such a woman at any time in the future, and then uses it as an aid in accomplishing her seduction, is guilty, and it makes no difference whether the time the marriage was to be consummated had expired or not.

7. CRIMINAL LAW (§ 811)—INSTRUCTIONS—COMMENT ON EVIDENCE.

An instruction undertaking to select certain portions of the evidence and commenting on the force and effect thereof is properly refused.

8. CRIMINAL LAW (§ 829)—TRIAL—INSTRUCTIONS—REFUSAL OF INSTRUCTIONS COVERED BY THE CHARGE GIVEN.

It is not error to refuse a charge fully covered by the instructions given.

9. CRIMINAL LAW (§ 565)—SEDUCTION—LIMITATIONS.

Where accused, under a promise of marriage, seduced a female of good repute under the age of 21 years, in violation of Rev. St. 1899, § 1844 (Ann. St. 1906, p. 1274), at any time within three years before the filing of the information, a verdict of guilty was authorized, and it was not essential to show that the seduction was accomplished on any particular date.

10. SEDUCTION (§ 45) —EVIDENCE—SUFFICIENCY.

Evidence held to justify a conviction of seduction.

11. CRIMINAL LAW (§ 1159)—VERDICT—CONCLUSIVENESS.

A conviction supported by substantial testimony will not be disturbed, though there is conflicting testimony.

Appeal from Circuit Court, Dent County; L. B. Woodside, Judge.

Roy Mitchell was convicted of seduction, and he appeals. Affirmed.

This cause is now pending before this court upon appeal by the defendant from a judgment of the circuit court of Dent county, Mo., convicting him of the seduction of a female of good repute under the age of 21 years under a promise of marriage.

On the 10th day of August, 1909, the prosecuting attorney of Dent county filed with the clerk of the circuit court of said county an information charging the defendant with unlawfully and feloniously seducing and debauching Arzetta Inman, an unmarried female of good repute and under the age of 21 years, under promise of marriage. At the regular August term, 1909, of the Dent county circuit court, and on the 16th day of August, the defendant was duly arraigned and entered his plea of not guilty, and on the following day he was put upon his trial in said court before a jury duly impaneled and sworn to try the cause. At said trial the state introduced evidence tending to prove that Arzetta Inman was an unmarried female, whose mother was deceased, and who resided with her father on a farm in Dent county; that defendant resided a mile and a half from the prosecutrix; that defendant had been waiting upon Miss Inman from January, 1905, as her suitor, until in January, 1909; that he was visiting the prosecutrix, when not away attending school, most every Sunday, and sometimes at evenings during the week; that he continued waiting upon her constantly during said time; that they became engaged to be married, and had contracted and agreed to marry each other; that they had been going together at least two years when they decided to marry when defendant arrived at the age of 21 years.

Prosecutrix testified that the defendant continually told her that he loved her, and she admits that she loved him; that on July 28, 1908, defendant had intercourse with her, after many times begging, persuading, and promising to marry her—as she says, "just persuading me into it"; that he told her they were to be married, and if she loved him well enough to wait for him, after he went to school, he did not think she ought to care, as they intended to get married. The prosecutrix testified that the defendant, by the exercise of arts and blandishments, persuaded her to have sexual intercourse with him, and that she cried about having given up to him after she went to bed that night, and told him about it when he came to see her the next time, and he wanted to again have sexual intercourse with her; that she loved defendant and thought he would do the right thing about it; that he promised to marry her, and she thought he loved her; and that she had never had intercourse with any other man. The prosecutrix testified: That defendant objected to her keeping company with any other young men during the full time of the courtship between the prosecutrix and defendant. That the prosecutrix, in the month of March, 1909, in conversation with defendant, asked him to keep his promise to marry her, and he said he did not know, that he was going to school, and that he could not marry the prosecutrix until after his course of four years' study in his school was completed, and advised her to go to a physician; that he could not give her medicine, as he would be subject to a term in the penitentiary if he did, and advised her to go to Dr. Craig, a physician. That during the time the prosecutrix and the defendant became engaged defendant wrote the prosecutrix a great many letters, some of them being introduced in evidence. That during the courtship defendant gave prosecutrix two rings, a manicure set, a bracelet, and other presents. Upon this bracelet defendant had engraved his initials and those of the prosecutrix. That during said period they were constantly together; the defendant taking the prosecutrix to many places and gatherings, such as to church, picnics, and encampments, and other public gatherings of that character in that neighborhood. The prosecutrix went to see Dr. Craig at the instance and request of defendant two or three different times. Defendant stated to prosecutrix many times that he would marry her and would always treat her right before and after he had sexual intercourse with her, and that after fondling and loving her she finally yielded to his solicitations.

Exhibits A to P, inclusive, were letters written by defendant to the prosecutrix and signed with appellant's name. No objections were made to their introduction in evidence, and no exceptions saved thereto. The state further introduced evidence tending to show that the prosecutrix and defendant were seen together at public places often; that defendant was known in the neighborhood to be the "solid company" of prosecutrix; that the prosecutrix enjoyed a good reputation in the neighborhood in which she resided, for honesty and integrity, virtue and chastity, and good behavior. The letters introduced in evidence were identified as the handwriting of defendant, and defendant admitted that some of the letters introduced were in his handwriting, and does not deny that the others were written by him.

The defendant introduced evidence tending to show: That prosecutrix, about the 10th of December, 1908, went to a singing in the neighborhood at the schoolhouse, and that she, defendant's father, Bud Duckworth, and others started from the schoolhouse toward home, and were together for about a half mile. That when they arrived at defendant's home Bud Duckworth permitted prosecutrix to ride behind him on his horse from defendant's home to the home of the prosecutrix, a distance of a mile and a half. That no other persons were traveling that way at that time. That the prosecutrix could have had other company from church, as her brother was there. Duckworth was a schoolteacher in the neighborhood, and this fact is shown as an impropriety on the part of the prosecutrix. That the brother of prosecutrix married defendant's sister and lived in the same yard in which prosecutrix lived.

The defendant testified...