State v. Steele
| Decision Date | 04 December 1919 |
| Parties | THE STATE v. CAREY STEELE, Appellant |
| Court | Missouri Supreme Court |
Appeal from Audrain Circuit Court. -- Hon. Ernest S. Gantt, Judge.
Affirmed.
Frank J. Duvall, Clarence A. Barnes and Hostetter & Haley for appellant.
(1) The improper conduct of counsel for the State has met fearless and just disaproval in the appellate court. State v Webb, 254 Mo. 434; State v. Spivey, 191 Mo 112. The prosecuting attorney should not express his belief in the defendant's guilt. State v. Hess, 240 Mo 160; State v. Webb, 254 Mo. 434; State v. Spiveg, 191 Mo. 112. The prosecuting attorney should not express his belief in the defendant's guilt. State v. Hess, 240 Mo. 160; State v. Webb, 254 Mo. 414; State v. Helton, 255 Mo. 182; State v. Phillips, 233 Mo. 299. (2) The action of the counsel for the State in proving over the objection of the defendant, but with the sanction of the court, that defendant had at one time been a drunkard and had taken the whisky cure, is sufficient in and of itself, absent all other errors, to reverse the judgment. It is well settled law that the character of the defendant on trial cannot be assailed by the State by proof of specific acts of wrongdoing or of delinquency. State v. McDonough, 232 Mo. 235; State v. Teeter, 239 Mo. 485. (3) The continuance of the case on the ground that Dr. E. M. Bartlett was an important witness, should have been granted. While it is in a measure discretionary with the trial court as to granting continuances, yet the policy of the law is to give a defendant a "square deal." Cases of conviction have been reversed by this court because accused was not granted a chance to get his important witnesses present and in court. State v. Sherrell, 198 S.W. 464; State v. Flick, 267 Mo. 34. (4) The evidence that defendant had procured medicines and consulted other doctors in Clarksville for the prosecuting witness was not proof that he was guilty of the offense charged in the indictment and the jury should have been told by instruction that such evidence of other offenses should be considered by them as bearing only on the question of intent and motive. State v. Hyde, 234 Mo. 224. If the character of a crime is such as to show on its face the intent, then evidence of other crimes is admissible. State v. Bersch, 207 S.W. 814.
Frank W. McAllister, Attorney-General, S. E. Skelley and Henry B. Hunt, Assistant Attorneys-General, for respondent.
(1) The question of continuance is largely within the discretion of the trial court, and that court's action will not be interferred with unless it appears that there has been an abuse of discretion. State v. Cain, 247 Mo. 705; State v. Cochran, 147 Mo. 516; Poplar Bluff v. Meadows, 187 Mo.App. 456. Diligence must be shown in trying to obtain the presence of a witness. Sec. 5204, R. S. 1909; State v. Kindred, 148 Mo. 281; State v. McKenzie, 228 Mo. 397; State v. Pagels, 92 Mo. 308. (2) The evidence of the State tending to show that appellant consulted physicians in Clarksville, was not evidence of other crimes. This evidence tended to disclose the relations of prosecutrix and appellant which thereafter culminated in appellant procuring Dr. Hawkins to perform the operation. 1 Cyc. 186 (5); 1 C. J. 329 (97) d; 1 R. C. L. p. 82, sec. 19. (3) Having enjoyed permission to successfully ask wholly incompetent and improper questions on a certain subject, it does not lie in the mouth of the appellant to complain of error in permitting the State to pursue a similar course. State v. Grubb, 201 Mo. 610; State v. Palmer, 161 Mo. 175; State v. Hamey, 168 Mo. 197; State v. Hutchinson, 186 S.W. 1001. (4) The specific trait of character of appellant involved in this case, was his character for morality. The court permitted appellant's witness, Berkeley Wells, to testify over the State's objection that the reputation of appellant for "morality, peace, quietude, truthfulness and general standing in the community," was good. State v. Anslinger, 171 Mo. 608. (5) Mr. Buffington did not comment upon the failure of the appellant to testify. B. of Ex., 353, 354; State v. Preston, 77 Mo. 296; State v. Hughes, 258 Mo. 271; State v. Gordon, 253 Mo. 518; State v. Faught, 140. Mo.App. 373. (6) The prosecuting attorney had a right to tell the jury, as a matter of argument, that the "circumstances in this case speak for themselves and alone are sufficient to be damaging and damning against the defendant." State v. Rogers, 253 Mo. 415; State v. Stark, 72 Mo. 39; State v. Gartrell, 171 Mo. 512; State v. Mallon, 75 Mo. 357.
Upon an information charging him with the crime of "felony of abortion," defendant was tried in the Circuit Court of Audrain County, found guilty, and his punishment assessed at one year in jail and a fine of one thousand dollars. Defendant has duly perfected an appeal.
Upon the part of the State the evidence tends to establish the following facts:
The crime occurred about the fifteenth of February, 1917, in Mexico, Missouri, At this time and for some six months prior thereto the defendant and prosecutrix resided as neighbors in Clarksville, Pike County, Missouri. Defendant, who was then over thirty years of age, resided with his mother, and the prosecutrix, who was then about nineteen years of age, resided with her mother. Prosecutrix was a student in the Clarksville high school, and defendant was interested more or less in farming. The two families were quite friendly. Defendant and prosecutrix were in each others company frequently, became engaged to be married and from about the middle of December, 1916, until the middle of the following February, frequently indulged in acts of sexual intercourse. Most of the acts of sexual intercourse occurred at the barn on the rear of the lot where defendant lived.
In January, 1917, prosecutrix missed her monthly period of illness. She communicated this fact to defendant. He told her that he thought it was due to the fact that she had had a cold and that he thought she would be alright in a short time. One week went by with no change in the condition, and appellant procured some medicine from a local physician. This medicine failed to produce any results. More medicine was procured from the local doctor, but without results. Several days afterwards appellant procured medicine from a physician in Louisiana, Missouri, but this likewise failed to bring about the menstruation.
Defendant then requested prosecutrix to tell her mother about her condition, stating to her that if her mother would consent a local physician would perform an operation upon her. Prosecutrix, however, did not tell her mother at that time. Later appellant informed prosecutrix that a local physician wanted to see her mother and requested her mother to come to his office that afternoon. The prosecutrix's mother went to see the doctor and refused to give her consent to an operation, and thereupon the doctor refused to perform the operation.
The mother of the prosecutrix requested defendant to marry prosecutrix, but defendant told her that he could not, because he did not want to lose his own mother.
Defendant stated that he would go to Louisana the next day and find a doctor who would perform the operation. A day or so later defendant told prosecutrix that he had found a doctor at Louisiana who would perform the operation. Defendant gave prosecutrix twenty-three cents for railroad fare to Louisiana, and the next morning defendant and prosecutrix boarded a train for Louisiana, but the defendant, stating that he did not wish to be seen with prosecutrix, rode in a different coach. Upon arriving in Louisiana defendant gave prosecutrix fifty cents with which to buy her dinner, and then informed her for the first time that he was going to take her to Mexico for an operation.
Later that day they went by railroad to Mexico. Upon arriving there defendant went out to inquire the way to Doctor Hawkins' office, and shortly thereafter came back to the depot and accompanied prosecutrix to the office of Doctor Hawkins, a duly registered physician.
When they arrived at the doctor's office he was alone. Defendant said to the doctor, "Here is the little girl, Doctor; she is a mighty fine little girl." The doctor replied saying, "I would think that if you had not told me; I think well of all the girls." After getting warm prosecutrix went into the back room of the doctor's office. Defendant at the request of prosecutrix remained in the front office.
In the private room the doctor placed the prosecutrix in an operating chair. Prosecutrix told the doctor that she was two months advanced in pregnancy. The doctor by means of instruments performed an operation upon her for the purpose of producing an abortion. Defendant paid the doctor twenty-five dollars for performing the operation. Prosecutrix became nervous and sick at her stomach, and rested upon a bed in the doctor's office until train time.
On the train going to Louisiana that evening prosecutrix became quite sick and had to be helped from the train at Louisiana. There she lay on the floor of the depot while defendant went to get an automobile to take them to Clarksville. They arrived at Clarksville about ten o'clock that night.
The next morning prosecutrix, according to the doctor's directions, removed the packing from her sexual organs. About nine o'clock that morning a foetus passed from her. The next morning prosecutrix suffered severe cramping spells and a local physician was called to give her some medicine. This local physician was shown the foetus and said, "Well, that's it alright."
Prosecutrix was in good health when she went to the doctor's office in Mexico, and she had not been advised by any physician that it was...
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