State v. Sublett

• Decision Date: 21 November 1905
• Citation: State v. Sublett, 191 Mo. 163, 90 S.W. 374 (Mo. 1905)
• Parties: STATE v. SUBLETT.
• Court: Missouri Supreme Court

90 S.W. 374

191 Mo. 163

STATE v. SUBLETT.

Supreme Court of Missouri, Division No. 2.

November 21, 1905.

1. CRIMINAL LAW — CONTINUANCE — TRIAL COURT'S DISCRETION.

An application for a continuance rests largely in the discretion of the trial court, and will not be interfered with unless it clearly appears that the discretion has been abused.

2. SAME—ABSENT WITNESS.

Where a criminal case was commenced October, 1901, and not until September 17, 1903, five days before the day of trial, did defendant have a subpœna issued for a witness, and the evidence of such witness, which had been given on a former trial, was read to the jury, there was no error in denying an application for a continuance because of the absence of such witness.

3. SEDUCTION — CORROBORATION OF PROSECUTRIX —DEFENDANT'S ADMISSION.

Under Rev. St. 1899, § 2631, requiring that the evidence of a woman as to a marriage promise, on a prosecution for seduction under promise of marriage, must be corroborated by two witnesses, evidence of an admission of defendant that he had promised to marry prosecutrix is corroborative.

4. CRIMINAL LAW — INSTRUCTIONS — CORROBORATION.

An instruction that the testimony of prosecutrix as to a marriage promise must be "strongly" corroborated by other evidence, sufficient to overcome the oath of defendant and the legal presumption of his innocence, and that the evidence of prosecutrix must be supported by "strong and clear proof" of facts and circumstances sufficient to establish the marriage

promise, was erroneous as a comment on the evidence.

5. SAME — APPEAL—REVIEW—INSTRUCTIONS— FAILURE TO REQUEST.

Where, on a prosecution for seduction under promise of marriage, defendant failed to ask the court to give an instruction defining the word "corroborated," used in an instruction to the effect that prosecutrix must be corroborated in her testimony as to a marriage promise, defendant could not complain of the absence of such definition on appeal.

6. CRIMINAL LAW—ARGUMENT OF COUNSEL.

Statement of counsel for the state to the jury that they ought to administer to the defendant such a punishment that a certain witness, who was afraid to come into court, and who had testified to taking liberties with prosecutrix, would not follow in defendant's footsteps, was not reversible error.

7. SAME—EVIDENCE—COMPETENCY—EXPLANATION OF FLIGHT.

On a prosecution for seduction, where defendant's mother testified that she told defendant to leave, and that he would not have gone away had it not been for her, an objection to a question as to why she told him to leave was properly sustained.

8. CRIMINAL LAW—NEW TRIAL—AFFIDAVIT— TIME FOR FILING—CONSIDERATION.

Though affidavits in support of a motion for a new trial were filed out of time, it was proper for the trial court to take them into consideration in passing on the motion.

9. SAME—SUFFICIENCY OF AFFIDAVITS—HEARSAY.

An affidavit in support of a motion for a new trial, stating that a certain person had made admissions to affiant with respect to the contents of a letter which he claimed to have received from prosecutrix, was insufficient.

10. SAME—IMPEACHING PROSECUTRIX.

Affidavits for a new trial, setting up newly-discovered evidence, which could only have been properly admitted to impeach prosecutrix by showing that she had made contradictory statements, for which no foundation had been laid, were of no avail.

Appeal from Circuit Court, Lewis County; E. R. McKee, Judge.

Creston Sublett was convicted of seduction, and he appeals. Affirmed.

Clay & Johnson, Jerry M. Jeffries, and W. A. Mussetter, for appellant. The Attorney General and N. T. Gentry, for the State.

BURGESS, P. J.

On October 16, 1901, the prosecuting attorney of Lewis county filed an information in the circuit court of said county charging the defendant with seducing and debauching one Hettie May Waterman under promise of marriage, and stating that she was an unmarried female of good repute, and under 21 years of age. At the September term, 1903, of said circuit court, the defendant was tried and convicted, and his punishment assessed at three years imprisonment in the penitentiary. After unsuccessful motions for a new trial and in arrest of judgment, defendant appeals.

The facts are substantially as follows: Hettie May Waterman and defendant were schoolmates, and had known each other for years. They were quite friendly, and were together on different occasions at entertainments, and visited friends and relatives in each other's company in town and country. On the 1st Sunday in March, 1901, according to her testimony, they became engaged to be married, but no definite time was fixed for the performance of the marriage ceremony. On June 21, 1901, the defendant took her to Quincy, Ill., in company with several other young couples. Returning to their homes late in the evening after dark, they crossed the Mississippi river, and then drove home in buggies. Defendant and the prosecutrix rode in the same buggy, and while riding in the buggy he hugged and kissed the prosecutrix, and told her how much he thought of her. After fondling her, the defendant assured her that he was going to marry her anyway, and that no one would know anything about it should they have sexual connection. She testified that she thought a great deal of him, and finally yielded to his solicitations, and had sexual intercourse with defendant, and thereafter in said county of Lewis. The testimony on the part of the state tended to show that prosecutrix was under 19 years of age at the time of this sexual intercourse. Defendant continued his visits to her until April, 1902, when he discontinued his visits without giving her any reasons therefor. He did state to others, however, that it was because he "had gotten tired." On March 27, 1902, prosecutrix gave birth to a child, of which she testified the defendant was the father. She also testified that she had never had carnal connection with any other man, and she established a good reputation for chastity among those who knew her. She stated, also, that she made some few preparations for her marriage, and had her mother and a few lady friends to assist her in making some clothes for that purpose. Her mother also testified to the attention of the defendant to her daughter and to his visits to her, and his taking her out with him on different occasions. In October, 1901, after it was discovered that the prosecutrix was pregnant, her two brothers, George and William Waterman, went to see defendant at his home, and stated to him that the purpose of their visit was to get him to marry their sister, as he was responsible for her condition. They asked him if he had not promised to marry her. He replied "Yes; but I don't know what about marrying her." He afterwards, in the same conversation, told the brothers that he was not going to marry her. There was also evidence tending to show that shortly after this conversation defendant left the country, and went to Nebraska and Colorado. At a former trial of the case defendant testified and admitted having had sexual intercourse with the prosecutrix on their way back from Quincy, as stated by her, and also that he quit going to see her because he got tired of her. On the part of the defendant, the evidence tended to show that two or three other young men kept company with prosecutrix about the time she and defendant were going together, and that one of these young men took improper liberties with her. The defendant's mother testified upon the trial that she was at her home, a short distance away from her son, when the brothers of the prosecutrix called to see him, and that she did not hear the defendant promise to marry their sister; that they frightened the defendant. She testified also that she was the cause of his leaving the country, and that he would not have gone but for her. Defendant testified in his own behalf that he did not promise to marry the prosecutrix, and denied that he had ever so stated. There was also evidence of the good reputation of defendant prior to this trouble.

The first question presented for our consideration by this appeal is with respect to the action of the court in overruling defendant's motion for a continuance on account of the absence of one Fred Frohman, claimed to have been a material witness for defendant. The case had been pending in the circuit court since October 16, 1901, and was set for trial September 22, 1903, but not until September 17, 1903, five days before the day of trial, did defendant have a subpœna issued for the witness. This the state contends was not proper diligence. Applications of this character rest largely in the discretion of the court passing upon them,...