State v. Salts
| Decision Date | 04 January 1915 |
| Citation | 172 S.W. 373,263 Mo. 304 |
| Parties | THE STATE v. PHILLIP A. SALTS, Appellant |
| Court | Missouri Supreme Court |
Appeal from Phelps Circuit Court. -- Hon. L. B. Woodside, Judge.
Affirmed.
J. J Crites and F. H. Faris for appellant.
(1) The information is signed "Corrie L. Arthur" with no official designation as prosecuting attorney. The verification thereto does not cure it; the affiant does not make oath, that he, the signer thereof, is prosecuting attorney. The information therefore was not "signed by the prosecuting attorney" as is required by statute, but was void and should have been quashed or the judgment thereunder arrested. R. S. 1909, sec. 5057; R. S. 1909, sec 5093; State v. Bruce, 77 Mo. 193; State v Wright, 161 Mo.App. 602. (2) Defendant's application for a continuance was erroneously overruled. It complied in all things with the requirements of Sec. 5204, R. S. 1909. State v. Dewitt, 152 Mo. 76; State v. Newsum, 129 Mo. 154; State v. Klinger, 43 Mo. 127; McKay v. State, 12 Mo. 492. The same diligence is shown in the case at bar as was shown in: State v. Newsum, 129 Mo. 154; State v. Maddox, 117 Mo. 667; State v. Anderson, 96 Mo. 241; State v. Walker, 69 Mo. 274; State v. Wood, 68 Mo. 444; State v. Klinger, 43 Mo. 127. (3) The court was in error in permitting the State, over the objections and exceptions of the defendant, to read to the jury the letters, purported to have been written by the defendant to the prosecuting witness. The letters could only be introduced as being in the nature of confessions or admissions on the part of the defendant, or, that the crime charged being what is termed a "sexual crime," the conduct and relation of the parties after, as well as before the alleged seduction, may be shown. "A confession or admission by a defendant must relate specifically to the matter charged in the indictment." Underhill's Crim. Ev., sec. 290, p. 350; Weaver v. State, 142 Ala. 33; State v. Bennett, 137 Iowa 427; 35 Cyc. 1355. In neither of the letters introduced is there anything that relates specifically to the seduction of the prosecuting witness, the identical matter charged in the information. (4) The court was in error in excluding the affidavit made by the father of the prosecutrix and filed before Esquire Perry before the arrest of the defendant. This affidavit tended to show the reputation of the prosecutrix, and should have gone to the jury, along with all the other evidence in the case. (5) The evidence in support of the chastity of the prosecuting witness fell far short of the legal requirement. State v. Brandenburg, 118 Mo. 181; State v. Grate, 68 Mo. 22; State v. Brooks, 92 Mo. 608.
John T. Barker, Attorney-General, and Lee B. Ewing, Assistant Attorney-General, for the State.
(1) The offense of carnal knowledge is properly charged in the information. Sec. 4472, R. S. 1909; State v. Hall, 164 Mo. 528; State v. Stanley, 232 Mo. 23; State v. Vinson, 171 Mo. 576. Defendant's motion to quash information was properly overruled. The information states that "Corrie L. Arthur, prosecuting attorney . . . upon the affidavit of Katie Marks herewith filed; informs the court," etc., but no affidavit was filed with same. However, the information was duly verified by the prosecuting attorney himself. This was sufficient. State v. Clark, 158 Mo.App. 489; State v. Nave, 185 Mo. 125. (2) The evidence was ample to support the verdict and judgment. State v. Day, 188 Mo. 359. (3) The court did not err in admitting testimony of handwriting experts regarding letters claimed to have been written by defendant to prosecutrix. The letters in question contained very strong evidence of the intimate relations existing between prosecutrix and defendant. Prosecutrix had testified that she and defendant had agreed that she should go under the name of "Katie Conlin." The letters were addressed to that name. She testified that they were in defendant's handwriting. The court then admitted them in evidence, to which defendant objected. Later the handwriting experts testified they were in defendant's handwriting. (4) The court did not err in excluding the affidavit made by prosecutrix's father. He did not testify, and the affidavit was not admissible for any purpose. (5) The court did not err in overruling defendant's application for continuance. State v. Cain, 247 Mo. 700; State v. DeVorss, 221 Mo. 469; State v. Sassman, 214 Mo. 695; State v. Crane, 202 Mo. 54; State v. Lynn, 169 Mo. 664; State v. Whitten, 68 Mo. 91; State v. Williams, 170 Mo. 204; State v. Cochran, 147 Mo. 405; State v. Dyer, 139 Mo. 199.
Defendant was by a jury convicted of carnally knowing Katie Marks who was between the ages of fourteen and eighteen years. His punishment was assessed at a fine of $ 300 and six months in the county jail.
The information and the affidavit attached, omitting formal parts, are as follows:
Defendant moved to quash the information for the following reasons:
At the September term, 1913, the cause was continued on the application of defendant in order to give the defendant time to get public records in the States of Kansas and Nebraska, for the purpose of proving that Katie Marks was over eighteen years of age at the time of the alleged offense.
At the December term, on December 8, the defendant again made application for a continuance on account of the absence of certain witnesses who would testify as follows: Wm. Smith and John Pope would testify to acts of sexual intercourse between them and prosecutrix; Wm. Kilgore, Jr., would testify that prosecutrix's reputation was bad and that she had intercourse with men prior to April, 1913; Rosa Haas and Gertrude Cooper would testify that Katie and her mother both stated that Katie was over eighteen years of age. The application stated that Will Smith resided at or near the town of Lecoma in Dent county.
The latter application for continuance was overruled on the same day. Two days thereafter, on December 10th, the case was called for trial. Both parties answered ready. The defendant made no further objections to proceeding with the trial.
The prosecutrix testified that she was born in Nebraska, March 4, 1896, and lived there five years, then in Oklahoma five years, then in Kansas five years. She moved with her parents to Rolla in February, 1912. Her mother corroborated her as to her age.
Stephen Marks, Katie's father, conducted a restaurant, and defendant was the proprietor of a second-hand furniture store. In October, 1912, defendant was employed in the Marks restaurant. About March 1, 1913, Marks and defendant both moved to St. James. Marks ran a restaurant, and was half owner of a second-hand furniture store managed by defendant, who owned the other half. Katie worked sometimes in the restaurant and sometimes in the furniture store. She testified that defendant began making improper advances to her before they left Rolla and that near the first of March, 1913, he had sexual intercourse with her, and that she had never had such connection with any other man.
About July 22, 1913, the parents of Katie discovered the relations existing between Katie and the defendant. There was a rupture of their business relations. Marks sold his interest in the furniture store to the defendant. Katie left St. James secretly, on August 1, in company with Viola Conlin, and went to Festus, Missouri, and corresponded with defendant under the assumed name of Katie Conlin. She testified that defendant gave her ten dollars when she left St. James, and that he sent her two dollars in a letter of August 2nd, and a dollar in a letter of August 5th. The handwriting of those letters was identified as that of defendant by the testimony of Katie and of two bankers. Those letters were read in evidence over the objection of defendant. They are too long for reproduction. They are addressed to "Dear Sweetheart," are full of protestations of devotion. They contain, among other things, the following:
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