State v. Strattman

• Decision Date: 02 June 1890
• Citation: 100 Mo. 540,13 S.W. 814
• Parties: STATE v. STRATTMAN.
• Court: Missouri Supreme Court

13 S.W. 814

100 Mo. 540

STATE v. STRATTMAN.

Supreme Court of Missouri.

June 2, 1890.

DEFILING FEMALE WARD — EVIDENCE.

1. Under Rev. St. Mo. 1879, § 1260, providing that, "if any guardian of any female under the age of 18 years, or any other person to whose care or protection any such female shall have been committed, shall defile her by carnally knowing her while she remains in his care, custody, or employment," he shall be punished, a conviction may be had of one in whose family such female was employed to look after his children; there being evidence that he promised her father to give her clothing and board, and send her to school, and treat her like one of his children.

2. It is no defense to a prosecution under the statute that the female was unchaste.

3. The fact that prosecutrix testified that defendant always forced her does not render the evidence demurrable as showing another crime, where the circumstances testified to by her tend to show that force was not used.

4. Error cannot be predicated of the court's charge that, before the jury could acquit because a higher degree of crime had been shown, they would have to believe from the evidence that, if defendant were on trial for such higher degree of crime, then it would be their duty from such evidence to convict defendant of such higher degree of crime, if they believed such evidence to be true; especially where any possible ambiguity there might be in the words "higher degree of crime" is explained by another charge that they should acquit if they found that defendant accomplished his object by force, and the prosecutrix only yielded to his superior strength.

5. An application for continuance on account of the absence of a material witness must state the facts to which such witness would testify. It is not enough to state that his testimony was "material."

Appeal from circuit court, Osage county; RUDOLPH HIRZEL, Judge.

At the April term, 1886, of the Osage circuit court, the defendant was indicted under the provisions of section 1260, Rev. St. 1879. The indictment is in proper form, and charges that defendant, on the 4th day of July, 1885, defiled one Mary Berhorst, a female under the age of 18 years, who had been confided to the care and protection of defendant by her father; and that such criminal act was done while she was in the care, custody, and employment of the defendant. The defendant was tried at the April term, 1887, the trial resulting in a verdict of guilty, and an assessment of punishment at three months' imprisonment in the county jail, and $100 fine. Before the trial began the defendant filed the following application for a continuance: "The said defendant cannot safely proceed to trial at this term of court on account of the absence of a material witness, to-wit, one James Clinton; that said witness has been duly served with the process of this court long prior to this term of court; that said witness is not absent by the act, knowledge, or consent or connivance of this defendant; that the evidence of said witness is material to the defendant in the trial of this cause; that he cannot prove by any other witness the same facts that he expects to show by said Clinton; that said Clinton lives within the reach of process of this court; that said defendant cannot safely proceed to trial without the evidence of said witness; that defendant verily believes that said witness can be had here at the next term of this court; the said witness was here at the last term of this court."

The transcript in this cause is prepared and indexed by E. F. Bautzer, circuit clerk, whose work is done so well in every particular as to leave nothing to be desired. If all transcripts in criminal causes were as well prepared as this one, our labors would be greatly lessened. The testimony is the following: Fred Berhorst: "I have a daughter, Mary Berhorst. She was living with defendant during 1884 and 1885. She is now 16 or 17 years old. Defendant came after her to take care of his children. The first time he came after her she would not go with him. The second time he came she went with him. Defendant was to give her clothing, board, and send her to school. She remained with defendant 5 or 6 years. I had no wife. The defendant married the sister of my wife. He said he would treat my daughter as his own child. He did treat her well. Then sent her away from his home. She was 9 or 10 years old when she first went there. Mary went to Haltmeyer's not quite two years ago, and remained there two or three months. All lived in Osage county." Cross-examined: "Defendant came after my daughter to take care of his children. He had one or two children then. He agreed to give her clothing, board, and send her to school, and treat her like his own child. He was to pay for the schooling." Mary Berhorst: "I live with Conrad Avers. I know the defendant. Have known him for 5 years. Lived at his house about 1885. I was about 10 years old when I went there. He said he would give me nice clothes, board me, and send me to school, and treat me as a child. One day he said he would go out in the field to work, — fix fence, I believe. He then told me such things. I told him I would not do such things. He took hold of me, threw me down, and did it. Defendant is the father of my child. The child is 13 months old. I am 16 or 17 years old. This was in Osage county, Mo. He said he would give me his farm if I would let him do it. I said I did not want his farm. He took hold of me, and threw me down. I remained there 7 months after that. He did not send me off. I left him. He gave me all my things. He did it a good many times." Cross-examined: "The first time he did it was two years ago. I tried to keep him from it. He did it any way. He said he would kill me if I told any one, — would kill me if I told his wife. I know V. Stewart. He was at Strattman's about that time. I know James Clinton and Thomas Scott. I never had anything to do with Clinton or Scott. Clinton was there as a hand about that time. A peddler was there about two years ago. He was at my bed at night. I told him to leave, and he left. I never had anything to do with any other person. Every time defendant did it I tried to keep him from it. I always resisted when he wanted to do it. I did not want him to do it." "Question. Did defendant force you every time he carnally knew you? Answer. Yes; I always resisted, and tried to keep him from doing it, and then he would throw me down, and do it anyway. Defendant had two children when I went there. Think he has four now. There are two rooms in the house. I never said anything about it until I went to Haltmeyer's. Defendant treated me bad toward the last. He got rough when he found I was with child. There were often men there. I often went in the field with them. Defendant and his wife never said anything about it to me." Defendant introduced evidence as follows: V. Stewart: "I live in Osage county, Mo. I know defendant and Mary Berhorst. I was working at defendant's during 1885. I know James Clinton and Thomas Scott. I do not know of Mary Berhorst having carnal connection with Scott, but I do know she had carnal connection with James Clinton. I saw it at Strattman's house, at night, before July 4, 1885." Mrs. Strattman: "I am the wife of defendant. I know Mary Berhorst. One night my husband was absent. Mary Berhorst went to bed with my little child. She went in the room with the hand. I told her not to go, but she went. At night the child cried. I went to find out what was the matter, and when I opened the door I heard a man jump out of Mary Berhorst's bed. In the morning Mary Berhorst told me that the hand, James Clinton, had been in bed with her. I asked her why he was there. She said, nothing; he only slept on the pillow with her. The next morning she told me that the peddler had been in bed with her about an hour, then left, and came back and got in bed with her again, and slept on the pillow with her. I tried to keep her from going with the men." Cross-examination. "My husband had nothing to do with her. I never saw anything out of the way with them." Redirect...