State v. Shearon

• Citation: 183 S.W. 293
• Decision Date: 15 February 1916
• Docket Number: No. 19294.,19294.
• Parties: STATE v. SHEARON.
• Court: United States State Supreme Court of Missouri

183 S.W. 293

STATE v. SHEARON.

No. 19294.

Supreme Court of Missouri, Division No. 2.

February 15, 1916.

Appeal from Circuit Court, Stoddard County; W. S. G. Walker, Judge.

Letcher Shearon was convicted of statutory rape, and he appeals. Affirmed.

K. C. Spence, of Bloomfield, for appellant. John T. Barker, Atty. Gen., and Lee B. Ewing, Asst. Atty. Gen., for the State.

WALKER, J.

Appellant was charged in an information filed in the circuit court of Stoddard county with carnally knowing an unmarried female of previously chaste character between 14 and 18 years of age. Upon a trial he was convicted and his punishment assessed at imprisonment in the penitentiary for a term of 2 years. From this judgment, he appeals. It is not necessary to burden this opinion with a detailed statement of the facts. We will set them out in the opinion when necessary to an understanding of the errors assigned.

I. Information.—It is contended that the information is defective in not alleging that the offense was committed by "a male person." The latter part of the charge alleges that "he, the said Letcher Shearon, did then and there have carnal knowledge of and abuse," etc. This sufficiently charges that the defendant was "a male person." While this alleged defect has not heretofore received judicial determination in this jurisdiction, despite the fact that many precedents appear which do not contain the words in question, it has been held elsewhere that an indictment or information for rape need not allege the sex of the accused. 33 Cyc. p. 439, and cases, note 84.

The information is based upon section 4472, R. S. 1909, and finds its origin in the old English statute of 18 Eliz. c. 7. All of the constituent elements of the offense, both at the common law and under the statute, are properly pleaded, and the appellant could not have been misled or suffered prejudice by reason of the omission from the charge of the words noted, and hence has no cause of complaint in this regard. Section 5115, R. S. 1909.

II. Rulings on Testimony.—The trial court did not commit error in excluding testimony offered by appellant to show that the uncle of the prosecutrix did not object to appellant's calling on her, but afforded him opportunities for so doing. The reason assigned for the introduction of this testimony was that it tended to show a criminal relation existing between the prosecutrix and her uncle which would authorize the jury to infer that she was not of chaste character. The testimony, if admitted, could not, except in a prurient mind, have been given this construction. Testimony is not admissible which will merely afford the jury an opportunity for making an inference, but that which submits facts relevant to the issue.

It was attempted to be shown by a witness for the defense, one Leroy Miller, on direct examination, that the uncle of the prosecutrix, then deceased, had made certain remarks derogatory to her character. There is no rule under which this character of testimony is admissible. On direct examination of a witness in regard to character the inquiry cannot be extended to particular facts. It must first be shown that the witness is qualified to testify in regard to the matter, and then he may be asked what the reputation of the party under inquiry is. The means and extent of his knowledge on the subject are properly left to cross-examination. State v. Fairlamb, 121 Mo. 137, 25 S. W. 895; Cunningham v. Underwood, 116 Fed. 803, 53 C. C. A. loc. cit. 107; Nelson v. Florida, 32 Fla. loc. cit. 247, 13 South. 361.

The record does not sustain the contention that appellant on cross-examination was interrogated as to matters not referred to in his examination in chief. He was, upon direct examination, asked a number of questions as to his marriage relation, the subsequent birth of a child to his wife, and that it was his child. An unauthorized and unusual occurrence followed this examination. The child in question was brought forward, and defendant was required by his counsel to stand with it in front of the jury, as naïvely put by counsel, that "they might see him with the baby." After this parade the witness was turned over to the prosecution for cross-examination, in which he was asked when he was married and when the baby was born. It being shown that the birth occurred within seven months after the marriage, the inquiry was made as to whether he had not questioned the paternity of the child. The objections to this line of inquiry were: First, that it was not in relation to any matter testified to by appellant in chief; second, that it did not tend to prove any issue in the case; and, third, that it was prejudicial. It is apparent from the statement of facts that this entire examination of the appellant, both by his counsel and the state, was without any semblance of authority; but it was initiated by the appellant, and the examination by the state only had reference to matters concerning or immediately growing out of the matter to which counsel for appellant had made inquiry. If error, it was invited, and invited error does not authorize a reversal unless the injury to the accused is manifest (State v. Hilton, 248 Mo. loc. cit. 532, 154 S. W. 729), which we do not regard it to have been in this instance. In addition, as tending to show that the appellant could not have been prejudiced by this...