State v. Stemmons

Decision Date16 July 1918
Docket NumberNo. 20719.,20719.
Citation205 S.W. 8,275 Mo. 544
PartiesSTATE v. STEMMONS.
CourtMissouri Supreme Court

Appeal from Circuit Court, Jasper County; R. A. Pearson, Judge.

Allen Stemmons was convicted of seduction, and he appeals. Affirmed.

J. D. Harris, of Carthage, for appellant. Frank W. McAllister, Atty. Gen.; and George V. Berry, Sp. Asst. Atty. Gen., for the State.

WALKER, P. J.

An information was filed in the circuit court of Jasper county, charging defendant with seduction under promise of marriage. Upon a trial he was convicted, and sentenced to two years' imprisonment in the penitentiary. From this judgment he appeals.

Soon after defendant became acquainted with the prosecutrix, in December, 1914, he became very attentive to her, and so continued until August, 1915, when he proposed marriage, and she accepted. Moved by his promise, she prepared table linen, sheets, pillow cases, and other articles necessary for household use. He continued his attentions until October, 1915, and one day, when they were out riding in an automobile, he insistently solicited sexual intercourse with her, urging her that, being engaged, they were married in the sight of God, and that a marriage ceremony was merely a formality, and would make no difference in their relations. She demurred, saying that they were not married in the sight of man. He persisted in his solicitations, declaring, if she cared for him, she would consent; that no one would ever know of it. Relying, as she says, upon his promise to marry her, like Donna Julia, "a little still she strove, and much repented, and whispering that she'd ne'er consent, consented." Again in November, 1915, moved by like blandishments, protestations; and promises on his part, she lent herself to his embraces. As a consequence of this intercourse, she became pregnant and gave birth to a child in July, 1916.

Good news is received gladly, but reluctant credence is given to evil tidings. When, therefore, the prosecutrix told the defendant of her condition, he refused to believe her. Finally convinced, he procured some medicine for her relief, and gave it to her. Its effect was futile. He then consulted a physician, who refused to perform an abortion on the prosecutrix. Defendant then told the prosecutrix he would take her to some place where she could have attention. It was arranged that she was to write to her parents that she was coming home, being then at her grandmother's in Jasper county, and her parents residing in Kansas. But, instead of going home, she was to go to Kansas City, where he would meet her. In compliance with this agreement, she went to Kansas City, where he met her at the railroad station, took her to a maternity hospital, and made arrangements for her stay there until after her confinement, paying the manager $100 to defray her expenses, and subsequently an additional $100 for a like purpose. He went away, and did not return until several days later. Her parents, in the meantime, had learned of her condition and whereabouts, and by agreement defendant met them at the hospital. He reached there before they did. Upon his arrival, he informed the prosecutrix that her parents knew of her condition, and were coming to see her. He requested her to tell them that she did not want to marry the defendant until after the baby was born; that immediately after its birth it could be put in a home, and she could get it later, and that she must make a favorable report of his relations with and conduct towards her. When the parents arrived, they found the defendant there in conversation with the prosecutrix. In response to an inquiry made by the mother, defendant stated that he knew no one else than himself had engaged in sexual intercourse with the prosecutrix. Asked further by the mother if he would marry the prosecutrix, he replied: "I didn't say I wouldn't."

Defendant, testifying in his own behalf, denied all of the facts of an inculpatory nature in the foregoing statement. He admits that he arranged for the prosecutrix's stay at the maternity hospital, and that he paid her expenses while there, but says he did this through fear of blackmail; that he had never shown the prosecutrix any attention as a lover, and had seldom ever been in her company; that he had never had sexual intercourse with her; that his acquaintance with her was but casual; that she came to a drug store in the neighborhood, where he was employed, told him she was pregnant, and asked him to give her something to produce an abortion; that he refused to do so; that she persisted in her request, and finally said, if he did not provide a means for her relief, she would charge that he was the cause of her trouble; that, impelled by fear of her so doing, he went to a physician and solicited his aid in the matter; that the latter refused to become a party to the proposed crime, and as a last alternative, in an effort to remove from his horizon this impending cloud, he took her to Kansas City, placed her in a maternity hospital, and advanced the money for the attention she was to receive while there.

The record is burdened with other testimony pro and con, much of it entirely irrelevant, to impeach this or that witness, or to show by facts and circumstances, often remote in their connection with the main issue, the relations existing between the principals in this miserable drama. We have set out enough of the testimony to define its general character. What we are concerned in is the proof as to the promise here alleged to have been made, as affecting the commission of the crime charged, and the other errors assigned, as we may be able to glean them from the argument submitted by counsel for defendant under the misleading title, as here employed, of "Points and Authorities."

I. It is contended that the testimony of the prosecutrix as to the promise of marriage was not sufficiently corroborated, and, as a consequence, that the crime charged was not made out as required by section 5235, R. S. 1909. Contentions of like nature have been made in the all too numerous cases arising under the statute (section 4478) denouncing the offense here charged. As a consequence, almost every phase of objection to proof of this nature has been under consideration.. The letter of the statute (section 5235), defining the measure of corroboration, is that it shall be to the same extent as that required of the principal witness in perjury. The reason underlying this statute is that in prosecutions for seduction, as in those for perjury, in the absence of corroboration, it would simply be the oath of the complaining witness against that of the accused, or an oath against an oath, resulting in a counterpoise of testimony, and leaving it doubtful as to where the truth lies. While it is not necessary, in a prosecution for perjury, that there shall be two witnesses to sustain the charge as under the old rule, nor need the corroborative testimony be tantamount to another witness, it must be sufficient to counterbalance the testimony of the accused and thus remove the legal presumption of his innocence. State v. Richardson, 248 Mo. 563, 153 S. W. 735, 44 L. R. A. (N. S.) 307; State v. Hunter, 181 Mo. 316, 80 S. W. 955; State v. Faulkner, 175 Mo. 546, 75 S. W. 116; State v. Heed, 57 Mo. 252. Likewise in prosecutions for seduction, as in the instant case. While the corroborative testimony, required only as to the promise, may consist of circumstances, they must come from other than the prosecutrix. State v. Long, 257 Mo. loc. cit. 208, 165 S. W. 748. While it need not be such as,. standing alone, would justify a conviction in a case requiring only the testimony of one witness, it must be at least strongly corroborative of the testimony of the prosecutrix. State v. Bruton, 253 Mo. loc. cit. 370, 161 S. W. 751. It is not necessary that such supporting proof shall be the testimony of a witness who heard the promise of marriage, but evidence of the conduct of the parties, such as usually accompanies a promise of this character, will suffice. State v. Teeter, 239 Mo. 487, 144 S. W. 445.

Admissions of the defendants, as to the promise, are sufficient State v. Long, 238 Mo. 383, 141 S. W. 1099; State v. Sublett 191 Mo. loc. cit. 172, 90 S. W. 374. Continued attentions by defendant to the prosecutrix, covering a long period, consisting of frequent visits, during which she kept no other company, will sufficiently support her testimony that her ruin was consummated under a promise of marriage. State v. Eisenhour, 132 Mo. 140, 33 S. W. 785; State v. Brassfield, 81 Mo. 159, 51 Am. Rep. 234. In short, evidence of material circumstances which usually accompany a marriage engagement, proved by other witnesses, will satisfy the statute. As to what these particular circumstances may be, each case must, to a great extent, he its own guide. State v. Davis, 141 Mo. loc. cit. 525, 42 S. W. 1083; State v. Wheeler, 108 Mo. 658, 18 S. W. 924; State v. Hill, 91 Mo. 423, 4 S. W. 121. Proof of preparations made for the marriage by prosecutrix, following a continuous courtship, may properly be introduced to corroborate the promise. State v. Walker, 232 Mo. loc. cit. 265, 134 S. W. 516; State v. Fogg, 206 Mo. 696, 105 S. W. 618. It is not necessary that the promise be made immediately preceding the intercourse; all that is necessary to show is that, if made then or previously, defendant thereby accomplished the prosecutrix's seduction. State v. Brassfield, 81 Mo. loc. cit. 160, 51 Am. Rep. 234. Guided by these illustrative precedents, are the facts at bar sufficient to bring this case within the requirements of the statute? For a period extending over...

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