State v. Stone

• Decision Date: 23 June 1891
• Citation: 106 Mo. 1,16 S.W. 890
• Parties: STATE v. STONE.
• Court: Missouri Supreme Court

16 S.W. 890

106 Mo. 1

STATE v. STONE.

Supreme Court of Missouri, Division No. 2.

June 23, 1891.

CRIMINAL LAW — CHANGE OF VENUE — ABDUCTION — EVIDENCE — INSTRUCTIONS.

1. Rev. St. Mo. 1879, § 1866, provides that no order for the removal of a cause shall be effectual in the case of any defendant, not in custody, unless a recognizance be entered into in open court, or delivered with the order and filed with the clerk. On change of venue being awarded, no recognizance was taken in open court, but afterwards the sheriff took a recognizance bond, which was filed, with the order of removal, with the clerk of the court to which the cause was transferred. Held, that there had been sufficient compliance with the statute to give jurisdiction to said court.

2. On trial for taking a female under 18 from her mother for concubinage, it is proper to permit the mother to testify that the daughter was taken without her consent, and to relate her efforts to find her daughter.

3. A defendant may be convicted of abduction of a female for the purpose of concubinage on the unsupported testimony of the prosecutrix.

4. It is proper to instruct the jury to find the defendant guilty if they believe from the evidence that the defendant took the prosecutrix, being less than 18 years old, from her mother, without the mother's consent, for the purpose of concubinage; "that is, for the purpose of having sexual intercourse with her for any length of time, even for a single night, without authority of a legal marriage."

5. It is not necessary to prove that the taking was forcible, and it is no defense that the girl consented to the taking and to the illicit intercourse.

6. The fact that defendant threatened the girl is no defense to the charge of abduction, where the evidence would not be sufficient to convict him of rape.

Appeal from circuit court, Cooper county; E. L. EDWARDS, Judge.

Indictment for abduction for the purpose of concubinage. Defendant was convicted, and he appeals. The instructions referred to in the opinion were as follows: "(1) If the jury believe, from the evidence, that the defendant, William Stone, at the county of Moniteau, in this state, at any time within three years before finding of the indictment, did take away Rebecca Wood from her mother, as charged in the indictment, for the purpose of concubinage, — that is, for the purpose of having sexual intercourse with her as man and woman for any length of time, even for a single night, without authority of a legal marriage, — and that said Rebecca Wood was at the time under the age of eighteen years, and that the mother of said Rebecca Wood did not consent to the taking away of said Rebecca for said purpose of concubinage, then the jury will find the defendant guilty, and assess his imprisonment in the penitentiary for a period of not less than two nor more than five years. (2) The jury are instructed that it is not necessary in this case for the state to prove that the taking away of Rebecca Wood from her mother was by force or violence; and it is no defense that the said Rebecca Wood consented to go with the defendant, or that she consented or agreed to her sexual intercourse with defendant."

Moore & Williams and Draffen & Williams, for appellant. Atty. Gen. Wood, for the State.

GANTT, P. J.

The defendant was indicted in the Moniteau circuit court on 6th day of September, 1888, for taking one Rebecca Wood, a female under 18 years of age, from her mother for the purpose of concubinage. He was arrested and duly arraigned on October 1, 1888, and plea, "not guilty," entered. Bail fixed by the court at $500. The cause was continued to the March term, 1889, of the Moniteau court. At the March term, 1889, defendant made his application for a change of venue, based on the ground that the minds of the inhabitants of Moniteau county were so prejudiced against him that he could not have a fair and impartial trial in said county. The court sustained his application, and awarded the change of venue to Cooper county. No recognizance was taken by the court at the time in open court. Subsequent to the order for a change of venue, however, the sheriff of Moniteau county took and approved a recognizance bond from defendant for his appearance in the Cooper circuit court on second Monday in July, 1889, to answer the indictment preferred against him by the grand jurors of Moniteau county. This recognizance was filed in the clerk's office in Cooper county, with the order of removal to that county. At the July term, 1889, of the Cooper court, defendant appeared, and was tried, and convicted, and sentenced to two years in the penitentiary. In due time he filed his motion for new trial, which being overruled, he filed his motion in arrest of judgment. The motion in arrest assigned as reasons for arresting the judgment that the Cooper circuit court had no jurisdiction of the cause, and because the order transferring the cause from Moniteau to Cooper county was invalid and of no effect. The court overruled this motion in arrest, and defendant appeals to this court.

Both in the brief and oral argument in this court the point most relied upon is the want of jurisdiction in the circuit court of Cooper county. Section 1866, Rev. St. 1879, is...