State v. Summar
| Decision Date | 01 March 1898 |
| Citation | 45 S.W. 254,143 Mo. 220 |
| Parties | STATE v. SUMMAR. |
| Court | Missouri Supreme Court |
1. Laws 1895, pp. 162, 163, provides that, when the regular judge is disqualified, defendant and the prosecuting attorney may, by agreement in writing, with the approval of the court, elect some attorney to act as a special judge. Held, that the prosecuting attorney is not bound to make such agreement; and, where he refuses to do so, it is the duty of the regular judge to call in another regular judge to try the case.
2. An indictment for defiling a female under the age of 18 years confided to defendant's care, it was not error to exclude evidence that at the time the offense was committed, and prior thereto, the general reputation of prosecutrix for chastity was bad.
3. Evidence of her reputation after the offense was admissible to affect her credibility.
4. On a prosecution for defiling a female under the age of 18 years while confided to defendant's care, the parents of prosecutrix testified that "he had taken the girl under an agreement to treat her as one of his own children"; that, some time prior to such agreement, she went to defendant's house to assist during the sickness of his wife; that, after a visit to a relative, she returned to defendant's house; that defendant sought her parents' consent to let her remain. Held, that the evidence justified a finding that the girl was confided to defendant's care, though her father, on cross-examination, said she was staying at defendant's without his consent, where he explained that he meant without his "express will."
5. It was not error for the state's counsel, in his argument, to say that a defendant who has ruined the character of a girl, "who will come into court and try to take advantage of his own wrong, is an infamous scoundrel," where there was evidence that defendant was the father of her illegitimate offspring, and that, when she appeared as a witness, he sought to prove she had a bad reputation for chastity.
6. It was not error to charge that defendant's testimony is to be weighed by the same rules that govern the testimony of other witnesses, but, in passing on its weight, the jury may consider defendant's interest in the result of the trial, but are not to reject his testimony, if believed to be true, simply because he is the defendant.
Appeal from circuit court, Polk county; James T. Neville, Judge.
J. D. Summar was convicted of defiling and carnally knowing a female under the age of 18 years, who had been confided to his care and protection, while she remained in his care and custody, and he appeals. Affirmed.
Rechow & Pufahl, for appellant. The Attorney General and Sam. B. Jeffries, for the State.
The defendant was indicted at the April term, 1895, for defiling and carnally knowing Lucy M. Davis, a female under the age of 18 years, who had been confided to his care or protection while she remained in his care and custody, and was tried and convicted and sentenced to imprisonment in the penitentiary for two years. He appeals from that conviction and sentence.
The indictment is in these words: The arraignment was in due form, and a plea of not guilty entered by defendant. The evidence tended strongly to establish these facts: Lucy M. Davis is the daughter of M. G. Davis and Mary E. Davis, his wife. The defendant is an uncle, by marriage, of Lucy Davis, having married her mother's sister. The two families of M. G. Davis and J. D. Summar, the defendant, lived in the same neighborhood, in Polk county, in this state, within 40 rods of each other, during the year 1894. Lucy Davis, the prosecutrix, was 15 years old on the 8th of April, 1894. In the spring of 1894, about the 10th of March, her father was about to move his home. The defendant requested Lucy's parents to let her go and stay with his wife, saying that, if they would do so, he would come and help them move. A few days after her parents had become settled in their new home, and while Lucy was still at defendant's house, defendant came to see her parents, and asked her father to let her remain at defendant's house through the anticipated confinement of his wife. He stated to them that, if they would let her stay through his wife's sickness, he would treat her as one of his family and one of his own children. The father of the prosecutrix told him that Lucy could stay during her aunt's sickness if he would treat her as one of his family. Under this arrangement the girl remained with defendant, under his care, until some time in June, when another relative, a daughter of James Acuff, who had married her father's sister, became sick, and they requested the prosecutrix to come and help them during her illness; and she went to Acuff's and assisted until the latter part of August or first of September, when she returned to defendant's house, left her clothing, and then came to her father's home. That afternoon she and her sisters went to the defendant's house to get a bucket of water, and defendant's wife induced her to stay and get supper, and she remained there, and did not return home with her sisters. A day or two after this, the mother of prosecutrix testifies that the defendant told her he wanted Lucy to stay at his house, and go to school. He said he would send her to school, and take care of her, and treat her as one of his own children. She told him she The father of the girl testified that, when the defendant asked his consent to having the girl stay at his house, he did not want her to stay at defendant's, but he acquiesced in the arrangement simply to avoid a fuss, and he did not go and take her by force after the defendant insisted on her staying. She kept her clothing at defendant's house, and her washing was done there. William Hyder testified that, in a conversation with him in the fall of 1894, defendant said he had taken Lucy "to raise and take care of the same as his own family, as his own child, and that he was going to take her with him, referring to his moving to Taney county." T. J. Hawkins testified he married defendant's wife's sister. In the fall, prior to defendant's moving away, the prosecutrix was living at defendant's house; and the witness heard a conversation of defendant with witness' wife as to how Lucy was living with him, and defendant said "he had taken her, and she was living there as his own child." Defendant testified, and did not deny any of the statements attributed to him by the girl's parents, that, if they would let him keep her, he would send her to school, buy her books, and treat her as his own child, and did not contradict the statements of Hyder and Hawkins that he had agreed to treat her as his child. The evidence tending to prove that he had carnal knowledge of the girl in his own house during the time she lived with him consisted of the girl's direct testimony to the fact and the circumstances, and of his efforts to get the witness Mann to marry her, offering to furnish him land, and a team to work it, if he would do so; also, his effort to get Hyder to take the girl to Ashgrove, and put her upon the midnight train for Springfield, where defendant would meet her. Her testimony that he gave her $25 to pay her expenses while away from home, after he discovered she was pregnant. His effort to get her to go to Tennessee until her child should be born. All this, and much more, tended strongly to prove he was the father of her illegitimate child. No denial of any portion of it was made by defendant when testifying. He contented himself with an attempt to impeach the evidence of the prosecutrix, by showing her character for virtue was bad prior to the time of the defilement, and at the time of the trial, and by simply saying, when on the stand, he never had any improper relations with her. The jury were left to infer what his standard of propriety was, without the benefit of his views on the subject. Directly impeaching his statement was the evidence of his sister-in-law Mrs. Owens, who certainly was not an unfriendly witness, to the effect that he stated to her "that he didn't deny the charge they had made, but that he was not the first one that ever bothered Lucy Davis"; "that he didn't deny having connection with Lucy Davis or intercourse, but he said he was not the first one." The other facts will be stated in connection with the propositions assigned for reversal of the judgment.
1. The right of Judge Cox, the regular judge, to call in Judge Neville, the judge of the Springfield circuit, to try the case, is denied by defendant. Judge Cox was rendered incompetent to hear the cause by reason of an...
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