State v. Nibarger
| Decision Date | 17 February 1914 |
| Citation | 164 S.W. 453,255 Mo. 289 |
| Parties | THE STATE v. JOHN NIBARGER, Appellant |
| Court | Missouri Supreme Court |
Appeal from Livingston Circuit Court. -- Hon. Arch B. Davis, Judge.
Affirmed.
L. A Martin for appellant.
John T Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
At the April term, 1913, of the court, appellant applied for a continuance on account of the absence of material witnesses. The court overruled the application because two of the alleged absent witnesses, Jack Hodges and Floyd Baker, were present in court, and because the testimony of Joe Waltz and Cecelia Campbell, the other alleged absent witnesses, was merely cumulative. Regardless of whether the court erred in overruling the application for a continuance, that point cannot be considered on appeal because the bill of exceptions on file does not show that appellant saved an exception to the action of the court. State v. Murphy, 117 Mo 14; State v. Stevenson, 93 Mo. 553; State v. Finley, 193 Mo. 202; State v. Penland, 199 Mo. 152. Instruction 5 told the jury that it was immaterial that prosecutrix had been carnally known by any man or men other than defendant, provided defendant had carnally known her while under his care, custody or employment. This instruction properly declared the law. State v. Strattman, 100 Mo. 548; State v. Rogers, 108 Mo. 204; State v. Sibley, 131 Mo. 532; State v. Summar, 143 Mo. 231. Instruction 6 related to the question of the care and custody of prosecutrix by defendant, and was a correct declaration of the law applicable to the facts in the case. State v. Young, 99 Mo. 284; State v. Strattman, 100 Mo. 540; State v. Skillman, 228 Mo. 434; State v. Terry, 106 Mo. 209; State v. Hesterly, 182 Mo. 26; State v. Oakes, 202 Mo. 86.
Defendant having been convicted in the Livingston Circuit Court of defiling one Nora Waltz, a female under the age of eighteen years, as denounced in section 4479, Revised Statutes 1909, 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 thirty-three 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 eighteen 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, sometime 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 house work and in the care of defendant's three children, until sometime 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' 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 deflowered 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:
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.
OPINION.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 existing between prosecutrix and the defendant, who was the husband of said sister, and that this wife and sister did not raise hand or voice to put an end to these meretricious actions. Unquestionably this is not the usual behavior of a wife or a sister; but even if this statement touching the wife's knowledge be false, and the jury were the judges of it, there is yet enough in the record to amply sustain this conviction. The more so, since the whole case as to the intercourse charged and necessary to be proven to sustain a conviction, does not rest upon the testimony of prosecutrix alone. Besides, the wife's knowledge, or lack of knowledge, was merely a single fact in a train of corroborative facts, and not so far a material issue as to call for the application of the maxim, falsus in uno, falsus in omnibus. There is ample corroboration in proof of sexual access arising from the extrajudicial statements of defendant himself.
Section 4479 of our statutes includes not only guardians, but all others standing in a confidential relation toward the female defiled. This is so well settled that we need only refer to the cases wherein the point is discussed. [State v Oakes, 202 Mo. 86; State v. Hesterly, 182 Mo. 16; State v. Summar, 143 Mo. 220; State v. Hill, 134 Mo. 663; State v. Sibley, 131 Mo. 519.] Of course we do not desire to be understood by the use of the words ...
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