State v. Oliver

• Decision Date: 05 November 1935
• Docket Number: No. 34492.,34492.
• Citation: 87 S.W.2d 644
• Parties: THE STATE v. FRANK (PAT) OLIVER, Appellant.
• Court: Missouri Supreme Court

87 S.W.2d 644

THE STATE v. FRANK (PAT) OLIVER, Appellant.

No. 34492.

Supreme Court of Missouri.

Division Two, November 5, 1935.

Appeal from Cape Girardeau Circuit Court. — Hon. Frank Kelly, Judge.

AFFIRMED.

Finch & Finch and Ward & Reeves for appellant.

Roy McKittrick, Attorney General, and Drake Watson, Assistant Attorney General, for respondent.

(1) Previous chaste character may be shown by evidence of the prosecuting witness or by evidence of other witnesses as to her reputation, and it is abundantly proven in this case by both. State v. Cook, 207 S.W. 831. There is a presumption that the prosecuting witness was of previous chaste character. State v. Reed, 157 S.W. 316. (2) The verdict is regular. State v. DeWitt, 186 Mo. 71; State v. Hamey, 168 Mo. 167; State v. Baublits, 27 S.W. (2d) 19. (3) The statute is violated by the mere commission of the sexual act, regardless of force and regardless of consent. State v. Volz, 269 Mo. 194; State v. Hamey, 168 Mo. 195. (4) There is abundant corroborative evidence, but corroboration is not necessary in this sort of a case. State v. Hughes, 258 Mo. 264; State v. Cox, 263 S. W. 215; State v. Cook, 207 S.W. 831. (5) The evidence of witness Minnie Mansker as to appellant's promise of marriage was admissible as it, coupled with the fact that he did not do so, affected his credibility, and when admissible for one purpose it will not be excluded. State v. Dalrymple, 270 S.W. 678; State v. Shearon, 183 S.W. 293. (6) The testimony of Zella Mahaffey as to her reason for having intercourse with appellant was admissible, and was harmless error, if any. State v. Pinkard, 318 Mo. 751; State v. Hartnett, 75 Mo. 251; State v. Stackhouse, 242 Mo. 444. (7) On prosecuting for rape, testimony as to the character of the place where the prosecuting witness lived at the time of the alleged crime is inadmissible. State v. Duffy, 124 Mo. 11; 70 C.J. 841; Thompson v. State, 234 S.W. 405. (8) The court correctly excluded testimony as to the reputation of other people who were not witnesses and who frequented the "Red" Mansker house. The way to attack the credibility of the witness Mansker is well defined and does not include such a course. State v. Baird, 195 S.W. 1010; State v. Ragsdale, 59 Mo. App. 590.

COOLEY, C.

Defendant was charged by information with the crime of having feloniously had carnal knowledge of an unmarried female of previously chaste character between the ages of sixteen and eighteen years, as defined by Section 4000, Revised Statutes 1929 (Mo. Stat. Ann., sec. 4000, p. 2806). Upon trial he was convicted, the jury returning a general verdict finding him guilty as charged, but not assessing the punishment. The court overruled defendant's motion for new trial and, as authorized by that section of the statute, assessed his punishment at two years' imprisonment in the penitentiary and, after allocution, sentenced him accordingly. He appeals.

Prosecutrix testified that she met defendant in January, 1933, while she resided at the home of her sister; that in February they became engaged to be married, and that about the last of March following she, at his solicitation, permitted him to have sexual intercourse with her; that she was seventeen years of age at the time and had never before had sexual intercourse with any person; that defendant told her he was twenty-five years of age and had previously been married, but was then single, having been divorced. It further appears from her testimony that the parties continued going together for several months, until defendant began going with another woman; that in December, 1933, she gave birth to a child, of whom defendant is the father.

A number of witnesses for the State testified that prosecutrix' reputation for virtue and chastity was good. Several for the defendant said that it was bad. Her reputation for truth and veracity was not assailed.

Defendant took the witness stand and denied that he had ever been engaged to marry the prosecutrix or that he had proposed marriage to her. He did not deny having had sexual intercourse with her. He was not asked about that.

[1] It is needless further to detail the evidence. That offered by the State, if true, makes a clear case. There can be no doubt of its sufficiency to sustain the verdict. Whatever contradictions appear between it and the evidence offered by the defendant were questions for the determination of the jury.

Appellant, though represented by able counsel at the trial, has filed no brief in this court. We look to his motion for new trial for the points relied upon for reversal.

[2] It is claimed that the court erred in permitting Mrs. Mansker, a witness for the State, to testify that in April, 1933, defendant told her that he and the prosecutrix were going to get married. Defendant objected to that testimony on the ground that it was "not any element of the offense." In this connection we may consider the further contention that the court erred in permitting the prosecutrix to state why she had permitted defendant to have sexual intercourse with her. When that question was propounded defendant objected on the ground that it was "wholly immaterial." The objection was overruled and prosecutrix answered:

"Well, we became engaged in February and he just talked to me all the time, and he told me it would not make no difference because he intended to marry me, and I loved him as much as I loved myself, and so I did."

We think there was no error in the admission of that testimony. It is true that an engagement to marry is not a constitutive element of the offense charged. But it does not necessarily follow that the fact may not properly be shown in proving the offense charged. The prior chastity of the female must be proved. In most, if not all, cases of this kind it can only be shown positively by the testimony of the prosecutrix. But of course her testimony that she was previously chaste is not conclusive. The jurors may or may not give credence to it. They must determine its credibility, — determine whether it is true or not. In determining that question why may they not properly be informed of all the circumstances that may reasonably bear upon that issue? The fact that the parties, at the time of the sexual act in question, were engaged to be married may, we think, legitimately be considered in that connection. It requires no stretch of imagination to believe that a virtuous, chaste girl would more readily and more likely yield her body to the man to whom she was engaged and whom she loved and trusted than if that relation of confidence and affection did not exist. Contra, if she readily consented to such lustful embraces without any such inducement it might tend to cast doubt on her prior virtue. The fact of an engagement to marry, if it exists, is a circumstance connected with the commission of the offense charged, and while not necessary to be proved in order to make a case under the statute is one that we think may properly be shown.

[3] At the time prosecutrix became acquainted with defendant and while she kept company with him she was making her home with a married sister, Mrs. Mansker, and the latter's husband, Tilford — called "Red" — Mansker, prosecutrix' mother being dead and her father's whereabouts unknown. Defendant sought to prove by his brother that "Red" Mansker's house had the reputation of being "a bootlegging house." The offer was rejected, and we think properly so. The house in question was the residence of Mansker and his wife, and by force of circumstances for which she was not to blame, prosecutrix was making her home there. She did not control the premises and was not responsible if it had the reputation of being a place where liquor was sold; and if it had such reputation that fact did not tend to impeach prosecutrix' reputation or character for chastity.

Complaint is made also that the court erroneously refused to permit defendant to prove that the reputation of "Red" Mansker as a law-abiding citizen was bad. The record does not justify this contention. Mansker had testified as a witness for the State. Defendant asked one of his witnesses if he knew Mansker's reputation "for being a law-abiding citizen." The court at first sustained the State's objection but later the question in substantially the same language and with the same meaning was repeated and, without objection, was answered by the witness, who said that he knew Mansker's reputation in that regard and that it was bad.

[4] Contention is made that the court erred in not sustaining defendant's motion to strike out the testimony of certain witnesses who had testified to the good reputation of prosecutrix for virtue and chastity, on the ground that it was shown by their cross-examination that they were not acquainted with her general...