State v. Pruitt

• Decision Date: 05 March 1907
• Citation: 100 S.W. 431,202 Mo. 49
• Parties: STATE v. PRUITT.
• Court: Missouri Supreme Court

100 S.W. 431

202 Mo. 49

STATE v. PRUITT.

Supreme Court of Missouri. Division No. 2.

March 5, 1907.

1. CRIMINAL LAW—INCEST—TRIAL—ELECTION BETWEEN ACTS.

Under Rev. St. 1899, § 2172 [Ann. St. 1906, p. 1394], providing that all persons named therein who shall commit fornication with each other, shall be guilty of incest, where, in a prosecution for incest, more than one act of intercourse is proven within three years next preceding the filing of the information, the court, at the close of the state's case, on motion of defendant for that purpose, shall require the state to elect upon which act it will rely for conviction.

2. INCEST—INSTRUCTIONS.

Where, in a prosecution under said statute for incest, the evidence tended to prove several acts of intercourse, an instruction authorizing a conviction in case the jury found that defendants had intercourse with each other was erroneous, for failing to direct the jury's attention to any particular act, and requiring them to all find defendants guilty of one specific act.

3. SAME—TIME OF OFFENSE.

In a prosecution for incest, it is not necessary for the state to prove that the offense was committed upon any particular day, provided that it was within three years next before the filing of the information.

4. SAME—EVIDENCE.

In a prosecution for incest, it was proper for the jury to consider any acts of intercourse which might have been committed by defendants prior to the commission of the act alleged in the information or relied on by the state for conviction, as well as any lasciviously familiar acts which did not actually constitute intercourse.

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

Nancy Pruitt and Henry Pruitt were convicted of incest, and appeal. Reversed.

W. E. Barton and N. B. Wilkerson, for appellants. The Attorney General and N. T. Gentry, for the State.

BURGESS, J.

Under an information theretofore filed by the prosecuting attorney of Texas county, the defendants were at the May term, 1906, of the circuit court of said county, convicted of the crime of incest; the punishment of each being assessed at imprisonment in the penitentiary for the term of two years. After motions for a new trial and in arrest of judgment had been filed and overruled, defendants appealed.

The state's evidence tended to prove that Nancy Pruitt was the mother of said Henry Pruitt; that Henry Pruitt was a single man, and lived with his mother on the same farm in Texas county; that the husband of Nancy Pruitt was alive, but not living with her. Annie Lewis testified that in August, 1905, she saw the defendants in a certain hollow on the Pruitt farm, lying down on the ground, and having sexual intercourse. Other witnesses for the state testified to various acts, and disgraceful suspicious conduct, on the part of the defendants from which criminal intimacy might well be inferred. Both defendants denied on the witness stand ever having had sexual intercourse with each other. At the close of the evidence on the part of the state, and again at the close of all the evidence, the defendants moved the court to require the state to elect upon which acts of intercourse testified to by the witnesses for the state it would rely for a conviction. These motions were by the court overruled, and defendants saved exceptions.

In cases of this character, where more than one act of intercourse has been proven to have occurred within three years next preceding the time of the filing of the information or the presentation of the indictment, it is the duty of the court, at the close of the state's case, on motion of defendant for that purpose, to require the state to elect upon which act it will rely for conviction. State v. Palmbery (Mo. Sup.) 97 S. W. 566. The information was filed on the 13th day of September, 1905, and...