State v. Prather

• Decision Date: 20 November 1896
• Citation: 37 S.W. 805,136 Mo. 20
• Parties: The State v. Prather, Appellant
• Court: Missouri Supreme Court

37 S.W. 805

136 Mo. 20

The State v. Prather, Appellant

Supreme Court of Missouri, Second Division

November 20, 1896

Appeal from Vernon Circuit Court. -- Hon. D. P. Stratton, Judge.

Affirmed.

J. B Journey for appellant.

(1) The court erred in refusing to sustain either of defendant's applications for continuance. The witness whose testimony was sought to be obtained was a nonresident of the state and beyond the jurisdiction of the court. His immediate whereabouts could not be ascertained by defendant in the brief time allowed him to prepare for trial. The materiality is shown both by the applications and the testimony in the cause. The matter of granting continuances rests largely in the discretion of the trial courts. But this was clearly an abuse of that discretion. State v. Dettmer, 124 Mo 426; State v. Maddox, 117 Mo. 667; State v Dawson, 90 Mo. 149; State v. Bradley, 90 Mo. 160; State v. Berkley, 92 Mo. 41; State v. Neiderer, 94 Mo. 79; State v. Warden, 94 Mo. 648; State v. Lowe, 98 Mo. 609. (2) The testimony of the witness Birdie Harpold is clearly incompetent. She should not have been permitted to testify. It is shown by her preliminary examination that she does not fully comprehend the solemnity of an oath. Her memory is further shown to be very poor. The matter of receiving the testimony of an infant who is by section 8925, Revised Statutes, 1889, declared incompetent is matter also resting largely in the sound discretion of the trial court, and its action thereon will be reviewed by the appellate court. 1 Wharton on Evidence, secs. 398, 399, 400, and 401; State v. Scanlon, 58 Mo. 204; State v. Jefferson, 77 Mo. 138; State v. Doyle, 107 Mo. 36; Cadmus v. Bridge and Tun. Co., 15 Mo.App. 93; Ridenhour v. Railroad, 102 Mo. 270; Buck v. Railroad, 46 Mo.App. 555. (3) The court should have given defendant's peremptory instruction offered at the close of plaintiff's case.

R. F. Walker, attorney general, for the state.

(1) The indictment is all that could be desired. In the language of the statute it charges the offense of which defendant was convicted. Sec. 3489, R. S. 1889. (2) The court very properly refused the instruction to acquit the defendant. The testimony abundantly established defendant's guilt. The evidence of the little girl, Birdie Harpold, clear, positive, and convincing, was alone sufficient to warrant the trial judge in submitting the issue of defendant's guilt to the jury, and would have been sufficient to support and sustain a verdict of guilty. This contention appears ridiculous when it is remembered that she was corroborated in every statement she made. That by other witnesses the trip with defendant to the woods, her screams while there, the condition of her clothing, and her return, and the fact that she was almost immediately followed by the defendant, her complaint to her mother and the contradictory statements of the defendant as to his whereabouts, were proven conclusively and satisfactorily. There is no such failure of proof as would justify the interference of this court. (3) The examination of Birdie Harpold established her competency as a witness. It was conclusively shown that while a child of tender years she fully appreciated and understood the force and effect of the oath administered to her to tell the truth, and the conclusion is inevitable from the fact that she was corroborated in every statement to which she testified by disinterested and reputable witnesses that she did tell the truth. The trial judge saw this child upon the witness stand, heard her statements upon her examination by counsel for defendant and was in much better position to judge and determine her competency than this court can be. Under the discretion allotted to that court he determined she was competent and permitted her to testify and this judgment should not be reversed until that discretion was improperly indulged and abused. The defendant is in no position to complain of the action of the court in overruling his application for continuance for two propositions are now well established in this state: First, that he must preserve his exceptions to the ruling of the court, and, second, that the ruling and decision of the court must be preserved in the bill of exceptions to all matters occurring during the trial in order that this court may determine exactly what occurred. He failed to preserve his exceptions in either case.

OPINION

Sherwood, J.

The defendant appeals from a conviction and sentence of three years in the penitentiary, the charging portion of the indictment being as follows: That A. E. Prather, on the eleventh day of June, A. D. 1895, at the county of Vernon and state of Missouri, in and upon one Birdie Harpold, a female child under the age of fourteen years, to wit, of the age of six years, unlawfully and feloniously did make an assault with intent, her, the said Birdie Harpold, then and there feloniously to unlawfully rape and carnally know and abuse, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.

This indictment, which is based on sections 3480 and 3490, Revised Statutes, 1889, is in good form, as shown by the following authorities: McComas v. State, 11 Mo. 116; State v. Jaeger, 66 Mo. 173; State v Meinhart, 73 Mo....