State v. Rogers

• Decision Date: 02 February 1892
• Citation: 18 S.W. 976,108 Mo. 202
• Parties: The State v. Rogers, Appellant
• Court: Missouri Supreme Court

18 S.W. 976

108 Mo. 202

The State v. Rogers, Appellant

Supreme Court of Missouri, Second Division

February 2, 1892

October, 1891

Appeal from Jasper Circuit Court. -- Hon. M. G. McGregor, Judge.

Affirmed.

H. L Shannon for appellant.

(1) The court should have admitted the testimony of Ollie Rogers as to his arrangement to meet the prosecuting witness for illicit purposes subsequent to the act charged against defendant, and as to defendant's detection of her in such meeting. 1 Greenl. on Ev. [Ed. 1886] sec. 423; Whar. on Crim Law, sec. 817; People v. Austin, 2 Parker's Crim. Law Rep. 154. (2) The court should have instructed the jury that the alleged confessions of the defendant must relate to the same transactions testified to by the prosecuting witness, and that otherwise said alleged confession should not be considered by them. (3) In stating to the jury in his closing argument that "the father and mother of the prosecuting witness had both testified that Mr. Shoey had confronted the defendant with the charge of having had intercourse with his (Shoey's) little girl, and that defendant had failed to deny the charge," James H. Dryden was guilty of such a misrepresentation of the evidence as to amount to reversible misconduct. Bishop v. Hunt, 24 Mo.App. 372; Marble v. Walters, 19 Mo.App. 134; Lloyd v. Railroad, 53 Mo. 509; State v. Kring, 64 Mo. 591.

John M. Wood, Attorney General, for the State.

(1) The court did not err in refusing to permit the witness, Ollie Rogers, to testify that he had made arrangement with the prosecuting witness to meet her on Saturday night, July 19, at defendant's barn for illicit purposes. It was not admissible in impeachment. Whar. Crim. Ev. [9 Ed.] secs. 35, 46, 49, 273, 484, 486, 492. (2) Both the father and mother of the prosecuting witness testified that when they confronted the defendant and charged him with having had intercourse with their little girl, he said, "Drop it; don't say anything more about it." This was doubtless what the prosecuting attorney had reference to when he made the remark relative to the failure of defendant to deny the charge, and it warranted the statement made by him in his argument of the case to the jury. The argument was legitimate, and no error was committed.

OPINION

Macfarlane, J.

Defendant was convicted in the circuit court of Jasper county, of defiling Catherine Shoey, a female under the age of eighteen years, while under his care and protection as a domestic servant.

The evidence shows that the girl was employed by defendant on Saturday, July 12, 1890. She testified that on the Friday night following he committed the criminal act. She returned to her father's home the next night. She stated on cross-examination, as a reason for returning home, that defendant had made a second assault upon her that evening.

Defendant called witnesses by whom he undertook to prove in explanation of the return of complaining witness to the home of her parents, that defendant had intercepted her on that night in the fulfillment of an illicit engagement with another man. He also undertook to impeach the credibility of this witness by proof of specific and independent immoral acts. The court excluded all this evidence, and its action, in so doing, is the chief ground of complaint.

I. The criminality of the act of which defendant was accused did not depend upon the character or reputation of the female defiled as in the case under section 3486 in a prosecution for seduction; nor does it depend upon the want of consent on the part of the girl to the act of defilement as in case of rape. R. S. 1889, sec. 3487; State v. Willoughby, 76 Mo. 215.

The purpose of the law was to prevent guardians, employers and others occupying confidential relations to girls of tender years from abusing such confidence. The crime consists in the act of defilement. Neither a subsequent engagement to meet another person for illicit purposes,...