State v. Volz

• Decision Date: 06 December 1916
• Docket Number: No. 19714.,19714.
• Citation: 269 Mo. 194,190 S.W. 307
• Parties: STATE v. VOLZ.
• Court: Missouri Supreme Court

190 S.W. 307

269 Mo. 194

STATE v. VOLZ.

No. 19714.

Supreme Court of Missouri, Division No. 2.

December 6, 1916.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Arthur Volz was convicted of carnally knowing a girl between the ages of 14 and 18, who was of previous chaste character, and he appeals. Reversed and remanded.

Upon an information charging him with having carnal knowledge of an unmarried female of previous chaste character, between the ages of 15 and 18 years, defendant was tried in the circuit court of the city of St. Louis, found guilty, and his punishment assessed at a fine of $500 and 6 months' imprisonment in the city jail. Defendant duly appealed. The prosecutrix on May 1, 1914, the date of the alleged offense, was 16 years, 1 month and 4 days old, and resided, with her parents, in the city of St. Louis. About 7 p. m. of that day, the defendant, a young man about 21 years old, living with his parents just across the street, asked the prosecutrix to take a walk with him. She had known the defendant about 10 years, and accepted the invitation. The two proceeded about six blocks from the prosecutrix's home out into O'Fallon Park, and when they reached a dark, grassy place in the park, prosecutrix said that defendant asked to have intercourse with her, and that "I refused, but I was forced to." That the defendant threw her down and had intercourse with her, and said that "if anything happened to me, he would get me out of it." She testified that this was the first time that she had ever engaged in an act of sexual intercourse. The following February a girl baby was born. On cross-examination, prosecutrix admitted that a short time after this occurred she again had intercourse with the defendant, defendant, telling her that if anything happened from the first act he would not get her out of it unless she again submitted to his lust. The mother of prosecutrix testified as to the age of prosecutrix, and that her daughter had always been a good girl; had never worked out anywhere, but had assisted about the home, doing household duties. The mother noticed that the daughter was "getting large" and interrogated the daughter. Shortly after that the mother met the defendant on the street and told him about the situation, and the defendant told her he would come over and see them, but that he would not do it while the witness' husband was at home. Defendant failed to come to the prosecutrix's home, and the mother went to defendant's home and talked to defendant's mother about the matter. Shortly after this defendant, accompanied by his brother, went to the home of prosecutrix and told prosecutrix's mother that they should have an abortion performed, and that he would pay for it. He there admitted that he was the father of the unborn child. On cross-examination the mother of prosecutrix admitted that she employed an attorney to see if arrangements could not be made for defendant to marry her daughter, but denied that she had ever attempted to accept money in lieu of a prosecution. The mother of prosecutrix also wrote a letter to the father of defendant, informing him of the trouble. In response to this letter the defendant and a Mr. Frank came over to the house and stated that the father of the defendant would pay for the confinement, but the mother of prosecutrix refused to accept this, stating that, "It was not treating my girl just or doing anything for her baby."

Five witnesses testified that, prior to this occurrence, the reputation of prosecutrix for virtue and chastity in that community was good.

The defendant produced as a witness one Mr. Chas. Hade, who testified that prior to May 1, 1914, he had had sexual intercourse with the prosecutrix 15 or 18 times, but he was not very definite in fixing the place and time of the different occurrences, and on cross-examination admitted that he was related by marriage to the defendant on trial. Two other young men were placed on the stand by the defendant to testify that they each had had sexual intercourse with the prosecutrix, but they were unable to fix the date prior to May 1, 1914. Three police officers testified that they had seen the prosecutrix out late at night on different occasions and as late as 1 o'clock a. m. one morning in July, 1914, with a young boy named Uncer. On cross-examination circumstances were brought out to show the existence of a friendly relationship between defendant's father and these policemen.

In rebuttal the prosecutrix testified that she was not out at 1 a. m. in July, 1914, with the Uncer boy, and her mother testified that the prosecutrix was never out late at night unless some elderly person or her brother or sister were with her. The state then called young Uncer, who denied that he was out at 1 o'clock a. m. with the prosecutrix in July, 1914.

The defendant did not testify in his own behalf.

Bass & Bass, of St. Louis, for appellant. John T. Barker, Atty. Gen., and S. P. Howell, Asst. Atty. Gen., for the State.

WILLIAMS, C. (after stating the facts as above).

I. It is contended that the evidence was insufficient to support the verdict; (1) Because there was no legal proof that defendant was over 17 years of age; and (2) because the evidence proved a case of forcible ravishment only, and therefore not such a case as could come within the meaning of section 4472, R. S. 1909, as amended in the Session Acts of 1913 at page 218.

Each of said points must be ruled against appellant. Prosecutrix testified that defendant told her he was 21 years old. That was sufficient evidence to justify the jury in so finding. As to the second point it is sufficient to say that the sexual act denounced by the above section of the statute constitutes a crime when committed under the conditions detailed in the statute, whether accomplished with or without force, or with or without the consent of the female. State v. Hamey, 168 Mo. 167, 67 S. W. 620, 57 L. R. A. 846.

II. The first paragraph of instruction No. 1 is attacked. Said paragraph reads as follows:

"If in consideration of all the testimony in the case, in the light of the court's instructions, you find and believe from the evidence that at the city of St. Louis and state of Missouri, on or about the 1st day of May, A. D. 1914, or at any time within three years next before the filing of the information herein the defendant Arthur Volz was then and there a male person over the age of sixteen years, and that he did then and there intentionally, unlawfully and feloniously have carnal knowledge of the body of one, * * * and that at the time he had such carnal knowledge of the said * * * she was an unmarried female of previously chaste character between the ages of fifteen and eighteen years, you will find the defendant guilty as charged in the information and assess his punishment at imprisonment in the penitentiary for a term of two years, or by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in the city jail not less than one month nor more than six months or by both such fine and imprisonment; and unless you so find the facts to be, you will find the defendant not guilty."

Section 4472, supra, before being amended in 1913 (see Session Acts of 1913, p. 218), did fix the minimum age of the male at 16 years and the maximum punishment at 2 years in the penitentiary. By said amendment the minimum age of the male was changed to 17 years and the maximum punishment was changed to 5 years' imprisonment in the penitentiary. Said instruction was therefore erroneous in the matters above indicated, but we do not consider either of said errors to be prejudicial for the following reasons: Concerning the first point the uncontradicted evidence fixed defendant's age at 21. If there had been an actually contested issue concerning defendant's age — some evidence fixing it below 17 — then quite a different situation would be confronted and no doubt the error would be prejudicial. But under the present state of the record it clearly appears that defendant could not have been harmed by the error.

Concerning the second point it is sufficient to say that it was the court's duty under said statute to fix the amount of punishment. State v. Hamey, supra; State v. Reed, 237 Mo. 224, 140 S. W. 909.

But even though it had been the province of the jury to assess the punishment, it would be difficult to conceive how defendant could be injured by having the maximum punishment reduced from 5 to 2 years.

It is further contended that the evidence showed two acts of intercourse, the second act a short time after the act of May 1st, and that the instruction therefore permitted the jury to find him guilty of the second act which according to her own testimony occurred at a time when she was unchaste.

We are unable to agree with appellant's contention. The jury were not permitted by said instruction to find defendant guilty if they found that he merely had sexual intercourse with the prosecutrix, but the instruction clearly requires the jury to find that at the time of the commission of the act the prosecutrix was of previous chaste character. Said instruction also requires the jury to consider all the testimony in the "light of the court's instructions."

By the third paragraph of said instruction the court defined the...