State v. Sibley

• Decision Date: 10 December 1895
• Citation: 131 Mo. 519,33 S.W. 167,132 Mo. 102
• Parties: STATE v. SIBLEY.
• Court: Missouri Supreme Court

33 S.W. 167

131 Mo. 519

132 Mo. 102

STATE v. SIBLEY.

Supreme Court of Missouri.

December 10, 1895.

SEDUCTION BY STEPFATHER — EVIDENCE — SPECIFIC ACTS OF UNCHASTITY — WITNESS — IMPEACHMENT.

1. Rev. St. 1889, § 3487, making it a penal offense for any guardian or other person to carnally know a female under 18 years of age, confided to his care or protection, includes a stepfather who carnally knows his wife's daughter while she is living as a member of his family, though she was never confided to his care by express agreement. Sherwood, J., dissenting.

2. On trial of an indictment under Rev. St. 1889, § 3487, for defiling a female confided to one's care, where it was claimed that prosecutrix, defendant's stepdaughter, became pregnant through her intercourse with defendant, it was proper to admit letters from defendant's wife to prosecutrix and the person with whom she was staying during her pregnancy, which were dictated

by defendant, containing advice as to what prosecutrix should do.

3. It was harmless error to admit a letter from defendant's wife to prosecutrix, written without defendant's knowledge, which advised prosecutrix what to do during her pregnancy, but did not tend to connect defendant therewith.

4. Prosecutrix testified, on a prosecution for defiling a female confided to one's care, that after she became pregnant defendant gave her medicine which so affected her that once, while ironing, she lost her mind, and found herself out on the street. Held, that it was error to allow a witness for the state to testify that on that occasion prosecutrix repeatedly said: "S. [defendant] done it. I told S. it would not do," — defendant not being present at the time.

5. On a prosecution for defiling a female confided to one's care, evidence that defendant's general character for chastity was bad was not admissible to impeach him as a witness. State v. Rider, 8 S. W. 723, 95 Mo. 486, and State v. Shroyer, 16 S. W. 286, 104 Mo. 441, followed.

6. It was proper, on a prosecution for defiling a female confided to one's care, to exclude evidence of specific acts of illicit intercourse by prosecutrix with persons other than defendant.

In banc. Appeal from circuit court, Mississippi county; Henry C. Riley, Judge.

L. D. Sibley was convicted of defiling and carnally knowing a female under 18 years of age, confided to his care, and appeals. Reversed.

Geo. S. Elliott and Wm. Hunter, for appellant. The Attorney General and Morton Jourdan, for the State.

BURGESS, J.

From a conviction and sentence to imprisonment in the penitentiary for a term of two years for defiling, debauching, and carnally knowing one Lula Hawkins, a female under the age of 18 years, who was charged to have been confided to his care and protection, defendant appealed. Lula is the daughter of defendant's wife, Roxie, by a former husband, and at the time of her mother's marriage with defendant was about 9 years of age. From that time on defendant clothed her, and sent her to school until she was 12 or 13 years old, when she refused to go. She, however, continued to live with defendant as a member of his family, assisting her mother in her domestic affairs, until she left home in May, 1890, and went to St. Louis, Mo., where she has resided ever since. She had a small estate, and in 1890 one Tinkhoff was appointed her guardian, and after that time, until her estate was exhausted, he clothed her. There was nothing tending to show that Lula had ever been confided to the care and protection of defendant other than what has been stated.

She testified that when she was between 12 and 13 years of age, and about the 1st of July, 1887, in the house, and in the forenoon of that day, during the absence of her mother from home, defendant had criminal connection with her by force and against her will; that only one member of the family was at home at the time except defendant and herself, — a little boy, who was outdoors; that he had put his arms around her, and made indecent proposals to her, on a former occasion; that after her mother returned home on the day that defendant first had connection with her she told her of the occurrence, who, a short time afterwards, told her that she would have to submit to defendant's wishes or leave home; that after that time defendant had criminal connection with her on different occasions, for as many as 35 to 40 times, always in the same room where her mother slept, she having knowledge of what was going on at all times; that he would leave her mother's bed and come to hers, and force her by threats and abusive language to submit to his desires, and that this continued up to within two or three days of the time of her leaving home; that from this intercourse with defendant she became pregnant, and in about eight months thereafter, in the city of St. Louis, where she had gone to be confined, defendant furnishing the money to pay her expenses to that place, she was delivered of a still-born child, of which defendant was the father; that during her pregnancy defendant gave her medicine to produce an abortion; that defendant and her mother were both well aware of her condition before she left home, and her object and purpose in so doing; that she never told any person except her mother of defendant's mistreatment of her, although she had a brother, older than herself, a grandmother, and sister. The mother of Lula, and the wife of defendant, testified as a witness for defendant, and denied all knowledge of any improper relations between Lula and him. She stated that Lula was a wayward girl, and ungovernable; that after she found out that she was pregnant she endeavored on different occasions before she left home to get her to tell who was the cause of her trouble, but she would give her no satisfaction about it. She also denied that Lula had ever told her of any mistreatment or improper conduct by defendant towards her. Defendant testified as a witness in his own behalf, and denied ever having any improper relations with Lula, that he had any care of or control over her, or that he was the father of her child. The evidence as to defendant's character for morality and chastity, truth and veracity, was conflicting. He had been twice elected justice of the peace, and had at one time been a member of the county court of Scott county. The indictment was preferred in Scott county, and on application of defendant the venue was changed to Mississippi county, where the trial was had.

1. The first question for consideration is as to whether Lula Hawkins was ever, under the evidence, confided to the care or protection of defendant, within the meaning of section 3487, Rev. St. 1889. That section reads as follows: "If any guardian of any female under the age of eighteen years, or any other person to whose care or protection any such female shall have been confided shall defile her, by carnally knowing her, while she remains in his care, custody or employment he shall, in cases not otherwise provided for, be punished by imprisonment." etc. If the statute means that the confiding contemplated by it must be by some express contract or agreement, then Lula Hawkins was never confided to the care or custody of the defendant. But, if such confiding may be inferred from the facts and circumstances in evidence, — which we think may be done, — then the evidence in this case showed a confiding within the meaning of the statute quoted. It was shown that at the time defendant married the mother of Lula she was but nine years of age, and that from that time on he assumed control over her, clothed and provided for her, sent her to school as long as she would go, and that she continued to be a member of his family until some time after the offense is alleged to have been committed. While we concede that criminal statutes cannot be so construed as to embrace offenses not clearly within their provisions, "yet the intention of the legislature must govern in the construction of penal as well as other statutes, and they are not to be construed so strictly as to defeat the obvious intention of the legislature." U. S. v. Wiltberger, 5 Wheat. 76. The statute was intended as much for the protection of females under the age of 18 years, who come under the custody, protection, and control of stepfathers, under the facts and circumstances disclosed by the evidence in this case, as for their protection against their defilement by their guardians; and it makes no difference whether they be confided by express contract, by operation of law, or whether their care and protection be assumed under circumstances such as shown in the case in hand. In State v. Woolaver, 77 Mo. 103, which was on all fours, so far as the record discloses, in its facts, with the one at bar, a judgment of conviction was affirmed; and, while the question now under consideration was not passed upon, it does not seem to have been doubted or questioned but that the offense came within the meaning of the statute, and this we think persuasive evidence, at least, that the court were then of that opinion.

2. During the trial, the state, over the objection of defendant, read in evidence the following letters from his wife to her daughter, Lula, and to his wife's cousin, Laura Hobbs, at whose house her daughter stopped upon her arrival in St. Louis:

"Commerce, May 21, 1889. Dear Lula: I will try to write you a few lines, to let you know that I got your letter the 19th, but I did not have any ink yesterday. I was glad to hear that you got there all right. I hope you will get a good place to stay. I want you to do your work good, and try to please the people where you stay, and be kind and good to them, and then they will be good to you. You must stay up there till you can come home all right. You say that you are a little homesick. You will get over that when you get better acquainted with the people up there. I want you to take care of your money when you get it. When you write you have your...