State v. Snow

• Decision Date: 11 June 1923
• Docket Number: No. 24470.,24470.
• Citation: 252 S.W. 629
• Parties: STATE v. SNOW.
• Court: Missouri Supreme Court

252 S.W. 629

STATE v. SNOW.

No. 24470.

Supreme Court of Missouri, Division No. 2.

June 11, 1923.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Herbert Snow was convicted of having carnal knowledge of a female child under the age of 15 years, and he appeals. Reversed and remanded for new trial.

James V. Billings, W. R. Hall, and O. Zimmerman, all of Kennett, for appellant. Jesse W. Barrett, Atty. Gen., and Robert W. Otto, Asst. Atty. Gen., for the State.

HIGBEE, C.

The defendant was convicted of having carnally known Nannie Marler, a female child under the age of 15 years. The information, based on section 3247, R. S. 1919, is in the usual form and charges that the offense was committed in Dunklin county on or about April 1, 1921. On the first trial the jury disagreed. The second trial resulted in a verdict of guilty and a sentence to the penitentiary for a term of two years, from which the defendant appealed.

Miss Marler testified that she was born on December 26, 1906; that she had intercourse with the defendant in her brother-in-law's barn some time in March, 1921, in Dunklin county; that defendant had intercourse with her several times; how many times she did not know. On cross-examination, she said one time was in a car; she did not know who was present; that it was between Holcomb and Clarkton; that one time Bob Brooks was driving the car and that Bob was along one time when defendant had intercourse with her.

The witness repeatedly refused to answer questions. Finally the court took the matter in hand and admonished her, but she still declined to answer. Thereupon, by direction of the court, the jury retired.

"The Court: Of course, you gentlemen understand the court can punish her for contempt of court by sending the witness to jail, but that wouldn't be any penalty for this witness, because she has been confined in jail and the reform school for months; if I have a right to, I'll instruct the sheriff or her mother to give her a good licking between now and 1 o'clock.

"Mr. Hall: I would suggest that she be sent to jail and not given anything to eat but water and bread.

"The Court: Mrs. Smith, you are her mother; if I put her in your charge, will you give her a good licking between now and 1 o'clock?

"Mrs. Smith: I'll get her to answer questions, if I can.

"The Court: This is the way she did before; I think she just needs a good licking; I think she ought to have the fear of God and the law put into her heart.

"Mr. Bradley (prosecuting attorney): I do too, Judge.

"The Court: If I have the power to do it, I'll order the sheriff to give her a good licking between now and 1 o'clock.

"Mr. Bradley: I would be glad to see it; if she don't talk. I've got my patience exhausted. I think she needs a whipping.

"The Court: Mr. Sheriff, will you lick this witness between now and 1 o'clock? Miss Marler, will you answer these questions, or had you rather be whipped by the sheriff?

"Witness: It don't make any difference to me.

"The Court: Will you answer these questions if the jury is brought back?

"Witness: (No answer.)

"The Court: Mr. Sheriff, we have a witness here who won't answer questions, and we are discussing some method of making her answer questions. Sending her to jail, we think, wouldn't do much good, because she has been in jail for several months, and she is 14 years old, and I want to know if you will—if the court orders it, if you will take her out in the presence of her mother and give her a good licking, with a good, strong switch? You might want to consult counsel before you decide about it though.

"The Sheriff: I'll say, off the reel, I refuse to do that; but I'll take the girl out and talk to her. She promised me she would talk. "The Court: That wouldn't do a bit of good. "The Sheriff: I'll tell you what I would prefer to do: I prefer to take her back to jail and put her in the dungeon and keep her there until she decides to talk. I'll do that rather than give her a licking.

"The Court: I know whippings have gone out of fashion, even in our schools. This generation is being raised to think they are too good to be whipped. I don't know what to do, gentlemen; I'll do whatever you say, if it is right.

"Mr. Hall: I would suggest, if you want her whipped, let her mother whip her. She has a right to, and I think she is the only one that has the right.

"Mr. Billings: Her mother could give her consent for her being whipped.

"The Court: She is really in charge of the juvenile court. I think the court could order, her licked, but I don't know whether it would be obeyed or not.

"Mr. Hall: I don't think he has a right to, order her licked, but he could have her tied up by the thumbs.

"The Court: No, the warden of the penitentiary got into trouble for tying them up by the thumbs. What do you say, Mrs. Smith? Will you whip this girl between now and 1 o'clock? * * *

"The Sheriff: I'm going to suggest one thing: Nannie knows we have a crazy man down there, and I'll put her in with that crazy man unless she will talk. She must talk or do something. You told me before you were going to tell this whole thing, and I don't want to punish you, but I'm going to have to do something. I'll put her up there and let her wait on that crazy man; he is sick.

"The Court: All right, Miss Marler, what do you say? Will you talk if the jury is brought back?

"Witness: Yes, sir.

"The Court: All right, let the jury come in, Mr. Sheriff."

After the jury returned, the witness still refused to answer questions and court recessed until 1 p. m. The witness then testified: We went in a house by the side of the road. Bob Brooks stayed in the car. At another time defendant took me to his sister's house. (Witness named two young men, who were with them on that occasion.) She had sexual intercourse with each of them it a church or schoolhouse and at several other places and times. She named other young men of the neighborhood with whom she had illicit relations; sometimes two or more being present. Sometimes she received money for her favors and at other times she got nothing. Witness testified that she had lived in Benton, Ill., and at some place in. Arkansas, before she came to Holcomb, and that she had had illicit relations with men in those places, and that sometimes she had received money from them. She told defendant she was 16 years of age.

Mrs. Nannie Smith testified that she lived near Malden, Ark.; that her daughter Nannie Marler, was born December 26, 1906 that prior to the defendant's preliminary hearing on April 9, 192:1, the defendant and John Brooks came to her house in Arkansas. "The defendant wanted to marry my daughter. They wanted my consent for my daughter's marriage. I said she was too young; that she was 14 and was going on 15. They brought Mr. Payne, a notary, who had some papers. They did not tell me my daughter was under arrest. I never found that out till after she had got her sentence to the reform school." On cross-examination, witness identified the papers she and her husband signed, giving their consent to the marriage, in which they stated that Nannie Marler was 15 years of age. These papers were signed and sworn to by the witness and her husband on April 2, 1921, and were read in evidence. Witness stated that she had not read them.

John Brooks testified that the defendant said he wanted to get married and asked him to go with him; that he went with the defendant and talked with Mrs. Smith; that he got Mr. Payne, a notary, who took the acknowledgments; it was before the preliminary hearing on April 9; that Mr. Payne read the paper to Mrs. Smith and she signed it; that he read over to her that this girl was 15 years of age; that Payne did not put the age in till he was down at the house and then put the age in according to the advice of Mr. and Mrs. Smith; that at that time the girl had been arrested as a prostitute and brought to Kennett; that the defendant wanted to marry her, and said, "I love the girl and want to marry her and get her out of trouble;" that this was before any of the boys were arrested.

Reuben E. Nichols testified that Mrs. Smith was his sister and that Nannie Marler was born in December, 1906; her father dying in the fall before Nannie was born.

Tom Kirk testified that two or three days after the defendant's preliminary hearing, he asked defendant if he actually had intercourse with the girl, and that defendant said: "Hell, yes; more times than I have fingers and toes."

A. A. Davidson, constable, testified that the defendant had asked him if he could not marry the girl and stop the trouble; that this was before witness had arrested her and after he had defendant in charge.

For the defense, Bob Brooks testified he did not know Miss Marler in March or April, 1921. He denied ever having had illicit relations with her or being present when defendant or any one else had. On cross-examination, witness was asked if he was charged with the same offense (having carnal knowledge of the prosecuting witness). The court overruled the defendant's objection and defendant excepted. Witness answered that he had been charged with the same offense; that he had his preliminary trial and was discharged.

Eight other witnesses, being the persons whom the prosecuting witness testified had had intercourse with her, severally denied her testimony. On cross-examination, each was asked if he was under indictment or was charged with the same offense as the defendant. Defendant's objections were overruled, and each testified he was under the same accusation. There was other testimony tending to prove the defendant's guilt.

1. The defendant complains that the court erred in requiring Bob Brooks and his other witnesses to testify on cross-examination that they were under indictment or charges for having had carnal knowledge of the prosecuting witness. They were not asked if they had been convicted. The charges were still pending in all the cases except in the...