State v. Nibarger

• Decision Date: 17 February 1914
• Citation: 164 S.W. 453,255 Mo. 289
• Parties: STATE v. NIBARGER.
• Court: Missouri Supreme Court

164 S.W. 453

255 Mo. 289

STATE v. NIBARGER.

Supreme Court of Missouri, Division No. 2.

February 17, 1914.

1. WITNESSES (§ 317)) — FALSUS IN UNO, FALSUS IN OMNIBUS.

Where, in a prosecution for defilement of a female under 18, there was evidence sufficient to show defendant's guilt both by his extrajudicial confessions and corroborating circumstances, testimony of prosecutrix that defendant's wife knew of the intercourse, even if unbelievable, was not so far material as to call for the application of the maxim, "Falsus in uno, falsus in omnibus."

2. SEDUCTION (§ 35) — PERSONS LIABLE — CONFIDENTIAL RELATIONS.

Under Rev. St. 1909, § 4479, providing that if any guardian of any female under the age of 18 years, or any other person to whose care or protection any such female shall have been confided, shall defile her, etc., a husband who obtains the consent of his wife's father to the taking of his wife's sister into the family was within the statute.

3. SEDUCTION (§ 42)—CHARACTER OF FEMALE AS DEFENSE.

Under Rev. St. 1909, § 4479, making it a crime for a guardian or other person to whose custody a female under the age of 18 is confided to defile her, the unchaste character of the female is no defense.

4. WITNESSES (§ 340)—CREDIBILITY—CHARACTER.

In a prosecution for defilement of a female under 18 years, her unchaste character may be shown to impeach the credibility of prosecutrix as a witness.

5. WITNESSES (§ 269)—CROSS-EXAMINATION— WIFE.

Where a wife in a prosecution of her husband for defilement of a female under 18 years testifies for him, she cannot be asked as to her knowledge of the intercourse under Rev. St. 1909, § 5242, forbidding cross-examination beyond the bounds of examination in chief.

6. CRIMINAL LAW (§ 1036)—OBJECTIONS TO EVIDENCE.

The admissibility of evidence to which no objection is made, nor exception taken, cannot be reviewed.

7. CRIMINAL LAW (§ 1091)—RECORD — CONTENTS —OBJECTIONS—APPLICATION FOR CONTINUANCE.

Where neither the application for a continuance nor defendant's exceptions to the court's action thereon is shown in the bill of exceptions, the ruling cannot be reviewed.

8. CRIMINAL LAW (§ 1186)—INSTRUCTIONS— IMMATERIAL OMISSIONS.

The omission, in an instruction as to extrajudicial confessions, that "the court instructs the jury that verbal statements of the defendant have proved" of the word "been" between have and proved, is not of sufficient moment to cause a reversal.

9. CRIMINAL LAW (§ 755½)—INSTRUCTIONS— WEIGHT OF EVIDENCE.

An instruction as to extrajudicial confessions, that, "if verbal statements of the defendant have been proved in this case, you may take them into consideration with all the other facts and circumstances proved, what the proof may show you, if anything, that the defendant had said against himself, is presumed to be true, because against himself, but anything you may believe from the evidence the defendant said in his own behalf you are not obliged to believe, but you may treat the same as true or false, just as you believe it true or false, when considered with a view to all the facts and circumstances in the case," is not erroneous, though it approaches very nearly to a comment on the evidence.

Appeal from Circuit Court, Livingston County; Arch B. Davis, Judge.

John Nibarger was convicted of defilement of a female under 18, and he appeals. Affirmed.

Defendant, having been convicted in the Livingston county circuit court of defiling one Nora Waltz, a female under the age of 18 years, as denounced in section 4479, and having had assessed against him as punishment therefor imprisonment in the penitentiary for a term of two years, has appealed.

The substantive facts, since no very serious attack is made upon the sufficiency of the evidence, are of no particular interest in this case; they add not at all to legal history, and therefore a recital in detail of their sordid and disgusting features would but cater to morbid taste without illuminating the points of law involved. Suffice it to say that the facts tend to show that defendant, a man aged about 33 years, by occupation a common laborer, alternating in his employment at manual labor upon farms and at sawmills, was married to a sister of Nora Waltz, the prosecuting witness. The proof shows that the said Nora was born on the 29th day of October, 1897, and that the first act of intercourse occurred in the latter part of November, 1911, at a time manifestly therefore when she was under the age of 18 years. The mother of said Nora was dead. Her father had remarried, but had separated from the stepmother of prosecutrix. He seems to have been very poor and to have augmented the galling ills of his poverty by a sort of general shiftlessness. Touching the necessary testimony under the statute to prove that the prosecutrix was confided to the care of defendant, the proof is ample. The testimony of one Stella Waltz, a witness for the state, and a sister of prosecutrix, was to the effect that defendant asked the father of prosecutrix to let the latter go to live with defendant, and that prosecutrix's father thereupon said: "Well, we want to get her a home some place, and Mr. Nibarger said he would take her and take care of her and treat her as one of his own family." In substance these same facts were testified to by two or three other witnesses in the case. Following this conversation between the father of prosecutrix and defendant, the girl Nora went, some time in the early fall of 1911, to live with the defendant and remained with him as a member of his household, assisting her sister, the wife of the defendant, in the housework and in the care of defendant's three children, until some time in December, 1912, when it became apparent that prosecutrix was pregnant, and her father came and took her away, and procured defendant's arrest. Following the first act of carnal access in November, 1911, the defendant continued at intervals, so prosecutrix says, to have intercourse with her until she left his house in December, 1912. The proof also shows that he communicated to his brother, Ed Nibarger, at least the fact of prosecutrix's easy virtue, and that as a result Ed Nibarger also had intercourse with prosecutrix. The prosecutrix herself, when a witness upon the stand, admitted two acts of intercourse with Ed Nibarger between the date of her becoming an inmate of defendant's house and the date of her leaving there.

Some effort was made by defendant to show the bad character of prosecutrix for chastity. We need not go into the details of this attempted proof for the reason that the acts sought to be proved did not go as far toward showing unchastity as the frank admission of prosecutrix herself. The acts sought to be proven by defendant related to alleged indiscretions with the said Ed Nibarger; but, prosecutrix herself having ingenuously admitted intercourse with him, it was therefore all before the jury. Besides, the alleged beginning of her unchastity was subsequent to the date at which she avers she was defloured by defendant.

In the course of the trial, one Mark White, who was the sheriff of Livingston county at the time of defendant's arrest, was called by the state to prove certain extrajudicial statements of defendant in the nature of confessions, but falling short of formal confessions. This witness testified that defendant told him that he had had intercourse with prosecutrix about April or May, 1912, and further said to him that his brother Ed Nibarger had also had intercourse with her. Bottomed upon this statement, which was the only extrajudicial statement of defendant shown in the case, the court gave this instruction: "The court instructs the jury that, if verbal statements of the defendant have proved (sic) in this case, you may take them into consideration with all the other facts and circumstances proved. What the proof may show you, if anything, that the defendant had said against himself, is presumed to be true, because against himself, but anything you may believe from the evidence the defendant said in his own behalf, you are not obliged to believe, but you may treat the same as true or false, just as you believe it true or false, when considered with a view to all the facts and circumstances in the case."

Should further facts be required in order to elucidate the subjoined discussion of the legal points in the below opinion, we will set them out there.

John T. Barker, Atty. Gen., and W. T. Rutherford, Asst. Atty. Gen., for the State.

FARIS, J. (after stating the facts as above).

We have not been furnished any brief of any sort by defendant's learned counsel in this case—a fact attributable, it may be, to the poverty of defendant, since he was permitted by the court below to prosecute his appeal in forma pauperis. Learned counsel for defendant argued this case before us ore tenus and expressed the hope that he would be able to furnish us with a brief, but none has been filed, and, as in duty bound, we have ourselves examined with much care the record herein as well as the assignment of errors contained in the motion for a new trial.

I. We find that complaint is there made that the evidence in the case is insufficient, and therefore that his demurrer to the evidence produced by the state should have been sustained. With this argument we are utterly unable to agree. The evidence is overwhelming on every point required by law to be proven. If the jury believed this evidence, and the weight of it was for them and not for us, but one result was possible; that result, the conviction of defendant, the jury reached. We are not saying that there are not to be drawn from some of the facts and circumstances in this case suspicious inferences. Some of the facts testified to by the prosecutrix are almost incredible, in that they are opposed to the usual and ordinary human experience. For example, prosecutrix swore that her sister was at all times fully advised of the relations...