State v. Terry

• Citation: 17 S.W. 288,106 Mo. 209
• Parties: The State v. Terry, Appellant
• Decision Date: 12 October 1891
• Court: United States State Supreme Court of Missouri

17 S.W. 288

106 Mo. 209

The State v. Terry, Appellant

Supreme Court of Missouri, Second Division

October 12, 1891

Appeal from Sullivan Circuit Court. -- Hon. G. D. Burgess, Judge.

Affirmed.

A. C Eubanks and A. W. Mullins for appellant.

(1) The indictment was insufficient, and the demurrer to it ought to have been sustained. Kelley's Crim. Prac., sec. 851; State v. Buster, 90 Mo. 514. (2) The court erred in admitting in evidence the letter, dated September 7, 1888 from Mrs. Terry, the defendant's wife, to Celia Steele the prosecuting witness. Mrs. Terry was incompetent to testify against her husband, and no statement of hers, whether in writing or oral, made without the knowledge or direction of her husband should have been admitted. 1 R. S. 1889, sec. 4218; State v. Arnold, 55 Mo. 91; State v. Berlin, 42 Mo. 572; Wharton's Crim. Ev. [8 Ed.] sec. 390, and note 1; 1 Greenl. Ev., sec. 334. (3) Instruction, numbered 1, given for the state is misleading and vicious. State v. Brown, 104 Mo. 365. (4) Defendant's eighth instruction should have been given, and defendant's tenth instruction was improperly refused. State v. Dwire, 25 Mo. 553; State v. Mix, 15 Mo. 153; State v. Gee, 85 Mo. 647. (5) The court erred in refusing to give defendant's instruction, numbered 11. R. S. 1889, sec. 3487. (6) Defendant's twelfth instruction should have been given. State v. Buster, 90 Mo. 514; State v. Strattman, 100 Mo. 540. (7) The court committed manifest error in refusing to give defendant's thirteenth instruction. The presumption of innocence "is a substantial rule, operating during the whole trial, and continuing to operate until the case is finally determined." Wharton's Crim. Ev. [8 Ed.] sec. 330; State v. Gonce, 79 Mo. 600; State v. Jones, 78 Mo. 278.

John M. Wood, Attorney General, for the State.

(1) The indictment contains every essential element under Revised Statutes, 1879, section 1260. (2) The letters complained of were properly introduced in evidence. (3) The first instruction on the part of the state properly declared the law. R. S. 1879, sec. 1260; State v. Young, 99 Mo. 284. (4) The second instruction, which told the jury that the variance between the name of the prosecutrix, as charged and proven, was proper. R. S. 1889, sec. 4114. (5) The third, as to the admissions, etc., of defendant, was correct. State v. Hill, 65 Mo. 84. (6) No error was committed in modifying instruction, numbered 2, asked by defendant. State v. Young, supra. (7) No error was committed in refusing instructions, numbered 6, 7, 9 and 13. They were all upon the question as to reasonable doubt, and the court had fully and properly declared the law as to reasonable doubt in other instructions given on the part of the state and the defendant. (8) The eighth instruction was properly refused; it did not declare the law. State v. Young, supra. However, it was embraced in instruction, numbered 1, on the part of the state, and 2 and 4 on the part of the defense, on the theory upon which the court tried the case, which was more liberal to defendant than was authorized under the ruling in State v. Young. (9) Instruction, numbered 10, asked by defendant, was properly refused, as it was embraced within instructions, numbered 5 and 6, given on the part of the state. (10) No error was committed in refusing instructions, numbered 11 and 12, asked by defendant. State v. Young, supra.

OPINION

Thomas, J.

The defendant was sentenced to imprisonment in the penitentiary for two years by the circuit court of Sullivan county, for defiling a female under eighteen years of age confided to his care.

I. The indictment, omitting the caption, is as follows:

"The grand jurors of the state of Missouri for the body of Sullivan county upon their oath present: That Philo F. Terry, on or about the twentieth day of July, 1888, at Sullivan county, aforesaid, being a person to whose care and protection, one Celia A. Steele was then and there confided, feloniously did defile her, the said Celia A. Steele, by then and there feloniously and carnally knowing her; she, the said Celia A. Steele, then and there being a female under the age of eighteen years, to-wit, of the age of seventeen years, and there and then being in the care, custody and employment of the said Philo F. Terry, against the peace and dignity of the state."

It is urged that this indictment is fatally defective in not directly averring that Celia A. Steele was confided to defendant's care; that she was under eighteen years of age, and that she remained in defendant's care, custody or employment when he defiled her, and Buster's case, 90 Mo. 514, is cited and relied on in support of this position. The indictment in the case cited is similar to the one under review as to the form of the averments, and that indictment was held bad, not because of the form of the averments, but for the lack of an essential averment. We think the statements are direct and specific enough in the indictment before us.

The indictment under review fails to state one essential averment in the language of the statute, the language of the statute being "while she remains in his care, custody or employment," while the language of the indictment is "then and there being in the care, custody and employment" of defendant. We deem the two statements, however, substantially equivalent to each other, and defendant could not have been misled by the averment, that he defiled the girl, she "then and there being in his care, custody or employment," instead of "while she remained in his care, custody or employment."

II. The next contention is, that the court erred in refusing to give the following instructions as prayed by defendant: "11. The court further instructs the jury that if they should believe, and that beyond a reasonable doubt, that the defendant had sexual intercourse with Celia Steele, and that she was in his employment at the time, yet unless the jury further believe from the evidence beyond a reasonable doubt, that some person having the charge or control of said Celia Steele, by some contract or agreement with the defendant, placed said Celia Steele in his care and protection, and that the defendant undertook or agreed to care for and protect her, then the jury are bound to find the defendant not guilty.

"12. If the jury believe from the evidence that the prosecuting witness, Celia Steele, was employed by the defendant or his wife as a hired girl, and that while living at the defendant's in that capacity, and that only, she had sexual intercourse whereby she became pregnant, then, under that state of facts, the jury cannot convict the defendant, whether the defendant had sexual intercourse with said Celia Steele, or whether she had such intercourse with some other person."

These instructions present to this court two new questions in connection with the crime defined by the section of our statute under which this indictment was drawn. These are, first, does a simple employment as a domestic servant in the family of the accused constitute a confiding to his care or protection within the meaning of the statute? and, second, if so, is the intervention of a third person in making the contract of employment essential?

The section as it now stands, and as it has stood since the revision of 1879, is as follows: "If any guardian of any female under the age of eighteen years, or any other person to whose care or protection any such female shall have been confided, shall defile her by carnally knowing her while she remains in his care, custody or employment," he shall be punished, etc., etc. In 1874 the construction of this section was before ...