State v. Walker
| Decision Date | 07 February 1911 |
| Citation | 134 S.W. 516,232 Mo. 252 |
| Parties | THE STATE v. DAVE WALKER, Appellant |
| Court | Missouri Supreme Court |
Appeal from Benton Circuit Court. -- Hon. C. A. Denton, Judge.
Affirmed.
W. S Jackson, Henry Lay and G. W. Barnett for appellant.
(1) The court erred in refusing to grant the defendant a new trial for the reason that the law was not properly declared in this case as to what it takes to constitute good repute. The question of paramount importance in a case of this kind is was the prosecutrix of good repute at the time of the commission of the alleged offense? And the answer is what people of her acquaintance generally say of her in this regard; that is, the general credit for chastity which she bears among her neighbors and acquaintances. State v. Fogg, 206 Mo. 713; State v. Sharpe, 132 Mo. 173; State v. Bryan, 34 Kan. 63. If the question of good repute is of paramount importance, then it was the duty of the court to explain to the jury what this important matter is. Good repute should have been defined to the jury. They should not have been left to grope in the dark or guess at what was meant. (2) The court erred in refusing to grant a new trial on account of newly discovered evidence furnished in the affidavits of witnesses, which would have not only disproved the allegations in the indictment that the prosecutrix was of good repute, but would have affirmatively established the fact that she was not of good repute. This evidence was not cumulative. No witness in the trial had testified as to any acts of lewd conduct on the part of the prosecutrix. There was no lack of diligence shown in this case. A motion for a new trial is improperly overruled in case of newly discovered evidence of sexual intercourse with other men, previous to the alleged seduction, which was the ground of the motion. Such evidence was clearly admissible, and where the defendant is guilty of no laches, only becoming aware of such evidence after the trial, the motion should be sustained. State v. Wheeler, 94 Mo. 252; State v. Curtis, 77 Mo. 267; State v. Bailey, 94 Mo. 311; State v. Moberly, 121 Mo. 604; State v. Morgan, 96 Mo.App. 343; Meisch v. Sippy, 102 Mo.App. 559. This character of evidence, namely, previous cases of illicit intercourse with other men by prosecutrix, was permissible to negative good repute. State v. Patterson, 88 Mo. 88; State v. Sharpe, 132 Mo. 173. When one of the matters set out in the motion for a new trial is the discovery of new and material evidence that would probably change the result, it is good practice to grant leave to file affidavits in support and counter-affidavits, within a given time, which may be beyond four days. Hesse v. Seyp, 88 Mo.App. 66. (3) The court erred in permitting the State to prove previous contracts or agreements of marriage between these parties, which had been abandoned and broken off, for the reason that they are too remote and have no connection with the alleged seduction. They could constitute no inducement for the prosecutrix to yield to the solicitations of defendant, but even if it was proper to permit the prosecutrix to testify to the previous abandoned engagements, yet it was highly improper and prejudicial to admit in evidence the long correspondence between the prosecutrix and defendant in the year 1907, while she was at Lamonte, two years prior to the engagement under which the alleged seduction was accomplished, this engagement that existed while prosecutrix was at Lamonte having been long abandoned by mutual consent. (4) The court erred in refusing instruction three, asked by the defendant, to the effect that the prosecutrix's testimony must be strongly corroborated by other testimony sufficient to overcome that of the defendant and the legal presumption of his innocence. This instruction properly declared the law. State v. Davis, 141 Mo. 525. And this law is not declared in any of the other instructions. (5) The court erred in giving instruction two on behalf of the State, as it improperly singles out specific things, and declares as a matter of law that they constitute corroboration. This instruction points out three things, any one of which in itself, the court says, is sufficient to confirm her testimony, and one is "or by preparation which the prosecutrix may have made for marriage, if any." This instruction does not tell the jury that that preparation for marriage is a circumstance which the jury may consider, along with all the other circumstances tending to corroborate her testimony, but it is only a circumstance to be considered with other circumstances, and it was a palpable error for the court to itemize these various circumstances, and tell the jury that any one of them constitutes a confirmation of the testimony of the prosecutrix. Had the jury been told that the prosecutrix's testimony might be corroborated from facts and circumstances, including preparations for marriage, it might not have been so objectionable. But a careful reading of this instruction will show that it declares that "the promise must be confirmed, either by direct evidence as to the promise, or by preparation which the prosecutrix may have made for marriage, or by facts and circumstances such as usually attend the marriage engagement."
Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
(1) The court committed no error in admitting all of the evidence of both engagements, as it was proper for the jury to know all the relations between the parties and all the facts connected with the promise of marriage. 11 Cyc. Ev., 694; 12 Current Law, p. 1819. All the relations of the parties are material and relevant. Armstrong v. People, 70 N.Y. 38. Letters from the appellant to the complaining witness are admissible. State v. Bell, 79 Ia. 117. The conduct of the parties prior to the alleged seduction and their relations to each other are always competent. Underhill on Crim. Ev., pp. 665, 666; State v. Curran, 51 Ia. 112; Bracken v. State, 111 Ala. 68. The conduct and relations of the parties are relevant to show that consent was obtained by promise and inducements, and what they consisted of. (2) The jury may find the fact of seduction upon the uncorroborated testimony of the prosecutrix, but the promise of marriage must be corroborated by proof of circumstances usually attending an engagement of marriage. State v. Brassfield, 81 Mo. 152; Rice on Crim. Ev., secs. 550, 551. Circumstantial evidence as to corroborating the promise is sufficient. Wharton's Crim. Ev., sec. 442. It is not necessary that the promise should be a valid and binding one between the parties; it is enough that a promise is made which is a consideration for, or inducement to, the act. Rice on Crim. Ev., p. 879, sec. 556; Kenyon v. People, 26 N.Y. 203; Boyce v. People, 55 N.Y. 644. (3) To corroborate the woman's evidence it may be shown that the demeanor of the parties was that of an engaged couple. The fact that the woman had made preparations for the celebration of the marriage is relevant. Underhill on Crim. Ev., sec. 388, p. 666. The character and intelligence of the woman must be considered. What might be insufficient to overcome or deceive the mind of a mature and educated woman might succeed in the case of a young and ignorant girl. Underhill on Crim. Ev., sec. 387, p. 665; State v. Sharp, 132 Mo. 165; People v. Kane, 14 Abb. Pr. (N. Y.) 15; Carter v. State, 79 Ala. 14; Phillips v. State, 108 Ind. 406; Woodward v. State, 5 Ga.App. 447; State v. Stolley, 121 Ia. 111. There was an abundance of evidence tending to corroborate the prosecutrix to take the case to the jury, whose province it was to pass upon its weight. State v. Dent, 170 Mo. 406. (4) Instruction 3, refused, was properly refused because instruction 2, given, properly defined "corroboration." Where all the propositions of law arising on the facts developed in evidence are covered by the instructions of the court, there is no error in refusing those asked by the appellant, though they may be correct. State v. Atchley, 186 Mo. 174; State v. Crittenden, 191 Mo. 17; State v. Barrington, 198 Mo. 23. (5) It is within the discretion of the trial court to refuse a new trial on the ground of newly discovered evidence, where such evidence would not change the result upon retrial. State v. Finn, 199 Mo. 597. If Carrico did those acts he would have been the only person to testify to it. It is not in reason for appellant to produce the kind of hearsay evidence mentioned in the Swerngin affidavits. Where the new evidence would not have changed the result, there is no error in refusing a new trial. State v. Estis, 209 Mo. 288; State v. Speritus, 191 Mo. 24; State v. Church, 199 Mo. 609.
The defendant was tried and convicted in the circuit court of Benton county, upon an information charging the offense of the seduction, under promise of marriage, of one Maude C. Yeager, an unmarried female of good repute, under the age of twenty-one years. His punishment was assessed at imprisonment in the penitentiary for a term of two years and, from the judgment pronounced, he appealed to this court.
At the trial, the evidence for the State tended to prove the following facts:
That Maude C. Yeager, the prosecutrix, was an unmarried female of good repute, under twenty-one years of age, and that she had resided in Benton county since her infancy; that when she was of tender years her mother died, and she was brought up by her relatives, having made her permanent home with her half-sister after she was ten years of age.
She had known the defendant, who was about eight years her senior since childhood. In the year 1905 the defendant...
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