State v. Schamel

• Decision Date: 25 May 1915
• Docket Number: No. 18708.,18708.
• Citation: 177 S.W. 351
• Parties: STATE v. SCHAMEL.
• Court: Missouri Supreme Court

177 S.W. 351

STATE v. SCHAMEL.

No. 18708.

Supreme Court of Missouri, Division No. 2.

May 25, 1915.

Appeal from Circuit Court, Perry County; Peter H. Huck, Judge.

Edward Schamel was convicted of seduction under promise of marriage, and he appeals. Reversed and remanded.

Defendant was convicted of the crime of seducing, under promise of marriage, one Dolly Vessells, contrary to section 4478, R. S. 1909, and appeals from a judgment fixing his punishment at three years in the penitentiary. A reversal of the judgment is sought mainly upon the ground that the evidence of the prosecutrix as to the promise of marriage is not corroborated in the manner required by section 5235, R. S. 1909.

Prosecutrix testified that defendant kept company with her "off and on" for seven or eight years. Sometimes she and defendant quarreled because he solicited sexual intercourse with her, and then he would go away, but later would return and renew the courtship. Prosecutrix admitted that she kept company with one Thirt, and that she would "talk to other boys when Ed was not around." Her memory was a little hazy as to the dates when she kept company with other boys. Prosecutrix further testified that defendant proposed marriage to her and was accepted on February 19, 1912, and that on April 8, 1912, he seduced her. The illicit sexual intercourse was renewed on September 6, 1912, and at intervals thereafter until May 25, 1913, when she became pregnant, and in due course of time gave birth to twin boys. She further testified that in June, after she became pregnant in May, she called defendant's attention to her condition and he proposed immediate marriage, but prosecutrix declined to get married at that particular time for fear, as she says, that it might cause a scandal. She agreed to and did take some medicine which defendant procured for her and which was intended to destroy her pregnancy. Said medicine had no effect. This practically ended all the dealings between prosecutrix and defendant until after the birth of her twin boys, when she preferred the present charge of seduction against defendant. Prosecutrix admits that she made no preparation for her intended marriage and told no one but her sister of her engagement until after she became pregnant.

The state proved the good repute of prosecutrix by three witnesses. One of those witnesses stated that her reputation was "good enough," and another testified that her reputation was "good as far as he knew." Such evidence as tends to corroborate the prosecutrix regarding the alleged promise of marriage, and other pertinent facts not heretofore mentioned, will be noted in connection with the conclusions we have reached.

Killian & Bond, of Perryville, for appellant. John T. Barker, Atty. Gen., and W. T. Rutherford, Asst. Atty. Gen., for the State.

BROWN, J. (after stating the facts as above).

I. After carefully reading and re-reading the record, we find that the evidence of the witnesses introduced by the state made out a prima fade case for the jury in all respects, except the corroboration of the prosecutrix as to the promise of marriage. Section 5235, R. S. 1909, requires the evidence of prosecutrix as to the promise of marriage in seduction cases to be corroborated "to the same extent required of the principal witness in perjury." It is self-evident that this section refers to the promise of marriage which must precede the seduction.

By witness John Moranville the state proved that about four years before the trial said witness told defendant that prosecutrix would make some man a good wife, whereupon defendant replied: "Me and her might marry some of these days." This witness (Moranville) was not personally acquainted with prosecutrix, but had just observed her pass where he and defendant were working in a field. The above-mentioned statement of defendant did not corroborate the alleged promise of marriage, because it was made nearly two years before the date when prosecutrix stated that said promise was made. The making of a promise cannot be corroborated before such promise is made. This proposition is so axiomatic as not to require citation for its support.

The state proved by one Harrison Phelps (the brother-in-law of prosecutrix) that after prosecutrix became pregnant he called on defendant at her request. This witness testified that, during his conversation with defendant, defendant sent the following oral message to prosecutrix: "I told her that I would stay with her, and I am." Witness Phelps stated that he did not know what defendant meant by this message, and he did not suggest or even speak to defendant about marrying prosecutrix, as he "thought that was for defendant to decide." In this conference between defendant and witness Phelps the matter of giving prosecutrix medicine to destroy...