State v. Salts

• Citation: 172 S.W. 373
• Decision Date: 04 January 1915
• Docket Number: No. 18323.,18323.
• Parties: STATE v. SALTS.
• Court: United States State Supreme Court of Missouri

172 S.W. 373

STATE v. SALTS.

No. 18323.

Supreme Court of Missouri, Division No. 2.

January 4, 1915.

1. INDICTMENT AND INFORMATION (§ 51) — SIGNATURE OF PROSECUTING ATTORNEY — OMISSION OF OFFICIAL TITLE.

The failure to insert the words "prosecuting attorney" after the signature of one at the end of an information does not invalidate it, where the body thereof and the affidavit states the official character of the signer.

2. CRIMINAL LAW (§§ 594, 1151) — APPLICATION FOR CONTINUANCE — DISCRETION OF COURT — REVIEW.

An application for a continuance on the ground of absence of witnesses for accused is addressed to the sound discretion of the trial court, and its action will not be disturbed, except in a case of clear abuse thereof.

3. CRIMINAL LAW (§ 603) — APPLICATION FOR CONTINUANCE — DISCRETION OF COURT — REVIEW.

Where an application for a continuance on the ground of the absence of witnesses for accused charged with carnal knowledge of a female between the ages of 14 and 18 years did not state that an absent witness would testify that he had had carnal knowledge of the female, nor what men would be named by him in that connection, nor give any reason for omitting them, and stated that another witness resided in another county but did not show what effort was made to procure his attendance, denial of the application was within the discretion of the court; especially where accused answered ready for trial two days after the denial.

4. RAPE (§ 38) — STATUTORY RAPE — EVIDENCE — ADMISSIBILITY.

On a trial for rape on a female between the ages of 14 and 18 years, letters written by accused to prosecutrix which tend to corroborate her testimony are admissible.

5. RAPE (§ 40) — STATUTORY RAPE — EVIDENCE — ADMISSIBILITY.

On a trial for rape on a female between the ages of 14 and 18 years, an affidavit of the father of prosecutrix subsequent to the offense which avers that prosecutrix is incorrigible and a person of immoral character is inadmissible.

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

Phillip A. Salts was convicted of a crime, and he appeals. Affirmed.

Defendant was by a jury convicted of carnally knowing Katie Marks, who was between the ages of 14 and 18 years. His punishment was assessed at a fine of $300 and 6 months in the county jail.

The information and the affidavit attached, omitting formal parts, are as follows:

"Corrie L. Arthur, prosecuting attorney within and for the county of Phelps and state of Missouri, upon the affidavit of Katie Marks, herewith filed, now here informs the court that on or about the ____ day of April, 1913, at and in the county of Phelps and the state of Missouri, one Phillip A. Salts, a male person over the age of 16 years, late of the county of Phelps, did then and there unlawfully and feloniously have carnal knowledge of one Katie Marks, an unmarried female of previously chaste character, between the ages of 14 and 18 years of age, against the peace and dignity of the

                state.                    Corrie L. Arthur
                

"Corrie L. Arthur, prosecuting attorney as aforesaid, first being duly sworn upon his oath, says that the facts contained in the above and foregoing information are true, according to his best knowledge, information, and belief.

                                         "Corrie L. Arthur
                

"Sworn to and subscribed before me this 27th day of August, 1913.

                   "[Seal.]     Will R. Ellis, Circuit Clerk."
                

Defendant moved to quash the information for the following reasons:

"Because the information shows upon its face that the same is not filed upon the official oath of the prosecuting attorney of Phelps county or any other officer or body authorized to prefer and make such information; because the averments of said information are insufficient in law to constitute any offense against the laws of the state of Missouri."

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 18 years of age at the time of the alleged offense. At the December term, on December 8th, 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 18 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 5 years; then in Oklahoma 5 years; then in Kansas 5 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 secondhand 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 secondhand 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 1st 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 1st, in company with Viola Conlin, and went to Festus, Mo., and corresponded with defendant under the assumed name of "Katie Conlin." She testified that defendant gave her $10 when she left St. James, and that he sent her $2 in a letter of August 2d, and $1 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:

"They have got watches out for 100 miles, and it would go hard with all three of us if they catch you and Viola. They are cussing us and telling all over St. James and Rolla they seen us at the very act. * * * For God's sake, Katie, be careful and don't get ruined, and I will see to it you shall not want as long as I can work or have a dollar. Don't worry about your folks, as they have branded you as a lying hore and that old Mrs. Hicks is telling you and Kilgore done just as he pleased with you, but I know it is a black lie, but dear be careful. I will send you $2.00, and then when you answer this, I will send you more, as I can hardly make out the name."

"They told Mrs. Salts I was a bad man, and you was a hore, and they caught us in the act. Mrs. Hicks and Bill Kilgore is talking. Bill says you told him he could do just as he pleased with you, if he would go back on Julia Hicks, and be your fellow, but my dear pet don't think for a minute I will believe anything they say about you sweetheart. I would give 500 to kiss your lips just now. They say they will spend every cent to brake me up, but if they do, I can make more. Don't worry, and I will send you money to hold you up. But you had better stay where you are for a while at least."

Three witnesses testified to the good reputation of prosecutrix for chastity. Miss Shaw was connected with the management of the Grant House, in Rolla. She testified that Katie worked there about four months, and that her reputation at the hotel was all right. Witness did not know how it was at Katie's home. Katie was also in the employ of the Purdy Hotel, and Mr. Purdy testified that he never heard her character discussed.

Harvey Paver testified that he lived just across the street from the Marks home for six months. Didn't know much about Katie's reputation, but said it was good as far as he knew.

At one time Julia Hicks lived just across the street from the Marks family at the home of George Starr. Julia Hicks, it is conceded by both sides, had a bad reputation. She left Starr's home and rented a room in the Marks home, where she lived for several months. She testified that on one occasion in summer she, in the company of Will Kilgore, and Katie with Harry Kilgore, went out to the cemetery, and that witness and Will Kilgore sat on the sidewalk while Katie and Harry went into the cemetery and were gone about an hour, getting back after dark. It was common for people to walk in the cemetery. This witness testified that at one time in her room she saw Katie and Will Kilgore lying on the bed; he with one hand under her head and with one arm around her. Witness left the room a few minutes. When she returned Katie was sitting up and Will was lying on the bed. Witness noticed nothing out of the way except as stated.

There was a revival meeting at the courthouse in August, 1912. Mary Medlock testified that she heard loud talking about 2 o'clock at night in front of the Marks home. She saw two girls...