State v. Richardson

• Decision Date: 09 November 1893
• Citation: 23 S.W. 769,117 Mo. 586
• Parties: STATE v. RICHARDSON.
• Court: Missouri Supreme Court

23 S.W. 769

117 Mo. 586

STATE v. RICHARDSON.

Supreme Court of Missouri, Division No. 2.

November 9, 1893.

CRIMINAL LAW — TAKING AWAY FEMALE FOR CONCUBINAGE — TRIAL — INSTRUCTIONS — SECONDARY EVIDENCE — REVIEW ON APPEAL — WEIGHT OF EVIDENCE.

1. On a trial of defendant for taking away a female under 18 years old for the purpose of concubinage, the state need not prove defendant's purpose in taking her away by positive testimony, if it be shown that he took her away; it being sufficient that such purpose be shown by facts and surrounding circumstances in evidence.

2. If defendant took her away for the purpose of concubinage, he was guilty whether or not he actually had sexual intercourse with her.

3. An instruction that while defendant's declarations are competent evidence, and that the law presumes to be true what a defendant may say against himself, the jury need not believe as true what he may have said in his own behalf, because proven or drawn out by the state, is not objectionable.

4. The father of prosecutrix was asked if he did not know there was an order of court giving the care of his daughter to her grandmother, to show that at the time of the commission of the offense she was not in the legal care of her father. Held, that an objection to the question was properly sustained; verbal testimony being inadmissible to show the contents of a record of court.

5. After the jury had returned their verdict, defendant offered a judgment in a suit for divorce against prosecutrix's father by his former wife, in which the custody of prosecutrix was given to her grandmother, and the evidence was excluded. Held that, it not appearing on what ground the evidence was excluded, it will be presumed that it was offered out of time.

6. The supreme court will not undertake to determine the weight of the evidence, and whether a conviction is sustained thereby or not.

Appeal from criminal court, Greene county; M. Oliver, Judge.

J. W. Richardson was convicted of a crime, and appeals. Affirmed.

The following instructions were given over defendant's objection, and duly excepted to: "(1) If the jury believe from the evidence that the defendant, John W. Richardson, at the county of Webster and state of Missouri, within three years next before the finding of the indictment, did then and there unlawfully, wilfully, and feloniously take one Nellie Moote, a female under the age of eighteen years, from the custody and care of her father, Ephraim Moote, for the unlawful and felonious purpose of prostitution and concubinage, by intending to have, and having, illicit sexual intercourse with her, the said Nellie Moote, then you will find the defendant guilty as charged in the indictment, and assess his punishment at not less than two, and not more than five, years' imprisonment in the state penitentiary. (2) In passing upon the question of the guilt or innocence of the defendant it is not incumbent upon the state to prove the purpose for which defendant took said Nellie Moote away, if you find he did take her away, by positive testimony, but this may be shown by facts and surrounding circumstances; and if, from all the facts and surrounding circumstances in evidence in the case, you find and believe that he did take her for the purpose charged in the indictment, and that she was under the age of eighteen, and under the care of her father, as charged in said indictment, you will find the defendant guilty." "(4) If you believe from the evidence that the defendant did unlawfully, wilfully, and feloniously, at the time and place mentioned in the indictment, take away the said Nellie Moote, she being a female under the age of eighteen years, if you so find, and she being then and there under the custody and care of her father, Ephraim Moote, if you so find, for the unlawful and felonious purpose of concubinage or prostitution, you will find the defendant guilty, although you may find and believe from the evidence that the defendant did not accomplish his purpose, — that is, did not in fact have sexual intercourse with her, the said Nellie Moote." "(6) The court declares the law to be that while the declarations of the defendant are competent evidence, and should be by you considered, you are instructed that the law presumes to be true what a defendant may say...