State v. Whitesell

• Decision Date: 01 February 1898
• Citation: 44 S.W. 332,142 Mo. 467
• Parties: STATE v. WHITESELL.
• Court: Missouri Supreme Court

44 S.W. 332

142 Mo. 467

STATE v. WHITESELL.

Supreme Court of Missouri, Division No. 2.

February 1, 1898.

RAPE — AGE OF CONSENT — EVIDENCE — WITNESSES — IMPEACHMENT — APPEAL — REVIEW.

1. On a prosecution for rape of a child under the age of consent, evidence that prosecutrix had had intercourse with another person prior to the alleged intercourse with defendant was inadmissible as bearing against the corroboration which the birth of the child tended to give to the charge of intercourse with defendant.

2. Rulings not mentioned in the motion for new trial are waived.

Appeal from criminal court, Greene county; C. B. McAfee, Judge.

W. A. Whitesell was convicted of rape on a female child under the age of 14 years, and he appeals. Affirmed.

Perry T. Allen and A. P. Tatlow, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, Asst. Atty. Gen., for the State.

BURGESS, J.

At the March term, 1897, of the criminal court of Greene county, defendant was convicted of rape on the person of Sallie Downey, a female child under the age of 14 years, and his punishment fixed at 5 years' imprisonment in the penitentiary. From the judgment and sentence, he appeals.

At the time of the alleged offense, defendant conducted a feed, coal, and wood store in Springfield, Mo. He was an unmarried man, and 47 years of age. In June, 1896, he employed Sallie Downey, who was then 13 years of age, as bookkeeper, and to assist him in and about his business. During the latter part of that month, or the early part of July following, he had sexual intercourse with her at his store. This act was repeated from two to three times a week until the 8th of October following, when she left his employment. She testified that she had never before had sexual intercourse. On the 24th day of April, 1897, she was delivered of a child, which she stated was the result of her connection with the defendant. Defendant denied having sexual intercourse with the girl, and introduced evidence tending to show that her reputation for chastity and veracity subsequent to the time of the alleged offense was bad. It was shown that, while defendant denied the intercourse and the paternity of the child, after it was born he offered to marry the girl and to take care of the child, and that she rejected his offer. The child was in the court room at the time of the trial. The statute under which the conviction was had reads as follows: "Every person who shall be convicted of rape, * * * by carnally and unlawfully knowing any female child under the age of fourteen years * * * shall suffer death, or be punished by imprisonment in the penitentiary not less than five years, in the discretion of the jury." Section 3480, Rev. St. 1889.

On the cross-examination of Sallie Downey, who testified as a witness on the part of the state, she was asked by defendant if she had not, prior to the time she went to work for defendant, had sexual intercourse with one Jacob Ott? To this question the state objected. The objection was sustained, to which ruling of the court defendant duly excepted, and assigns the same for error. The contention is that the evidence was admissible as bearing, so far as it might, against the corroboration which the evidence of the birth of the child tended to give to the charge of intercourse by the defendant with the prosecutrix. The same question was before the supreme court of New York in People v. Flaherty, 79 Hun, 48, 29 N. Y. Supp. 641; and while it was ruled that the facts of pregnancy and childbirth, and that the prosecutrix had committed the act of sexual intercourse with others, were unimportant, and would be no defense for the defendant if he also had sexual intercourse with her while she was under the age of 16 years, it was also held that when it was proven by the prosecuting witness that she had given birth to a child in March, 1893, which was the result of sexual intercourse by her with defendant in the month of June, 1892, it was permissible for defendant to prove that she had sexual intercourse with others about the same time that she did with him, as bearing, so far as it might, against the charge of such intercourse which her pregnancy and the birth of the child tended to impute to him. But that case is clearly distinguishable from the one in hand, in that it was proposed to show in that case that the prosecutrix had sexual intercourse with others about the time she did with defendant, while in this case the question propounded to the prosecutrix was, with respect to an act of intercourse before defendant ever had connection with her. Moreover, it seems illogical to say that certain facts are of no importance, and at the same time hold that evidence is permissible as bearing, so far as it might, against the charge of such intercourse which the birth of the child tended to impute to defendant. Shirwin v. People, 69 Ill. 55, is relied upon as sustaining defendant's contention; but it does not...