State v. Tevis

• Decision Date: 11 April 1911
• Citation: 234 Mo. 276,136 S.W. 339
• Parties: STATE v. TEVIS.
• Court: Missouri Supreme Court

136 S.W. 339

234 Mo. 276

STATE v. TEVIS.

Supreme Court of Missouri, Division No. 2.

April 11, 1911.

1. CRIMINAL LAW (§ 1092) — EXCEPTIONS, BILL OF—SIGNING—TIME.

Where a defendant convicted at the January term was given until the second day of the April term to file his bill of exceptions, and before that time the Legislature changed the April term to May, a bill of exceptions filed on the second day of the May term was in time.

2. INDICTMENT AND INFORMATION (§ 191)— CONVICTION OF LESSER OFFENSE INCLUDED IN CHARGE.

Incest is a lower crime than rape, and, where the same act constitutes both rape and incest, a conviction for incest may be had under a charge of rape.

3. INDICTMENT AND INFORMATION (§ 130)— JOINDER OF COUNTS—INCEST AND RAPE.

It is proper to join in an indictment counts for rape with incest, where they both relate to the same transaction.

4. CRIMINAL LAW (§ 829)—TRIAL—INSTRUCTIONS—REQUESTS.

Where the trial court has fully instructed on a certain point, it is not error to refuse additional instructions.

5. JURY (§ 108)—COMPETENCY—OPINION AS TO CAPITAL PUNISHMENT.

In a prosecution for rape and incest, it was proper for the court to excuse jurors opposed to capital punishment; rape being a capital crime.

6. RAPE (§ 54)—INCEST (§ 15)—EVIDENCE—CORROBORATION OF FEMALE.

A conviction of either rape or incest may be had on the uncorroborated testimony of the female, but, when her testimony is contradictory or, when applied to the admitted facts in the case, is not convincing, she must be corroborated.

7. INCEST (§ 14)—EVIDENCE—SUFFICIENCY.

Evidence in a prosecution for incest held insufficient to sustain a conviction.

Appeal from Circuit Court, Henry County; C. A. Denton, Judge.

George Tevis was convicted of incest, and appeals. Reversed and remanded.

Defendant was convicted of incest in the circuit court of Henry county. From a judgment fixing his punishment at three years in the penitentiary he appeals.

The information in this case contains two counts. In the first defendant is charged with committing rape upon his daughter, Bessie Tevis; and in the second, with incest, by having sexual intercourse with her.

The state's evidence tends to prove: That defendant is a section foreman on a railroad, and at the time he is charged with committing this crime resided with his family, consisting of his wife, his son aged 18, a daughter aged 16 (the prosecutrix), another daughter aged 10, and an infant, in the town of Windsor, in Henry county. That about 4 o'clock one morning in March, 1907, defendant's wife having gone to the depot to bid a friend good-bye, defendant went to the bed where his daughters were sleeping, and by threats compelled prosecutrix to have sexual intercourse with him. She (the prosecutrix) testified that defendant had been forcing her to have sexual intercourse with him during a period of several years whenever her mother happened to be away from home at night. The defendant having threatened her life if she informed any one of his misconduct, she did not tell any one of his crime until April, 1908, when she confided the matter to her mother. Within a week or 10 days after the prosecutrix informed her mother they caused the defendant's arrest. The mother was not sworn, but the prosecutrix testified quite fully concerning the alleged crime and to the facts surrounding it. On cross-examination she admitted: That her father allowed her to associate with other young people, to make trips to nearby towns. That she frequently disobeyed him, and that in December, 1907, she forged her father's name to an order for a railroad pass, and, having thus procured transportation, went to the town of Ray, near Kansas City, and remained 12 days; that in January, 1908, she made another trip to Kansas City, and visited friends several days. This last trip was made with her father's consent and in company with her mother. That in April, 1908, defendant gave her $10 to go to a store a mile or so away and purchase groceries for the family, and that she and her mother used this money to go to the county seat and prefer this charge. After defendant's arrest, two physicians examined the prosecutrix, and found her sexual organ enlarged, but did not express any opinion as to the probable cause of that condition.

The conviction in this case rests entirely upon the evidence of prosecutrix. The jury returned a verdict of not guilty of the charge of rape, but found defendant guilty of incest. Such additional points in the evidence as are necessary to a full understanding of our opinion will be given in connection with our rulings on the issues tendered.

The defendant assigns the following alleged errors: The evidence showed that, if any crime was committed, it was rape, and that the conviction for incest cannot stand; that the court erred in refusing an instruction limiting the effect of the evidence that the defendant had been convicted for petit larceny; that the court erred in excusing jurors because they were opposed to capital punishment; and that upon the whole case the court should have directed an acquittal.

Barnett & Barnett, for appellant. Elliott W. Major, Atty. Gen., and Jno. M. Atkinson, Asst. Atty. Gen., for the State.

BROWN, J. (after stating the facts as above).

The Attorney General contends that there is nothing but the record proper before us—that the bill of exceptions was not filed in time. Defendant was convicted at the January term, 1909, of the Henry circuit court, and was granted until the second day of the next April term to file his bill of...