State v. Whitworth

• Decision Date: 12 February 1895
• Citation: 29 S.W. 595,126 Mo. 573
• Parties: The State v. Whitworth, Appellant
• Court: Missouri Supreme Court

29 S.W. 595

126 Mo. 573

The State v. Whitworth, Appellant

Supreme Court of Missouri, Second Division

February 12, 1895

Appeal from Pettis Criminal Court. -- Hon. John E. Ryland, Judge.

Affirmed.

""W. D. Steele and ""Sangree & Lamm for appellant.

The trial court committed reversible error in not instructing upon the whole law of the case. ""First. In not defining and explaining the word "seduce." ""State v. Reeves, 97 Mo. 668. ""Second. In not defining what "corroboration" means, and in not designating the circumstances which would supply the necessary and statutory support to the story of the prosecutrix on the alleged promise to marry, alleged to have been made before the alleged seduction, and in not telling the jury the extent to which this corroboration must go as set forth in the statute. ""State v. Reeves, 97 Mo 668; ""State v. Wheeler, 108 Mo. 658. (2) Instructions number 2 and number 3, given for the state, were erroneous. Instruction number 2, on the needed corroboration of prosecutrix, is within the very letter and mischief of the instruction criticised in ""State v. Reeves, 97 Mo 668. It falls far short, in all its essential particulars, of the instruction on the same point approved by this court in ""State v. Wheeler, 108 Mo. 658. (3) The corroborative proof of the promise must be, if not equal to another witness, at least strongly corroborative. This is the rule in perjury, to which the statute in terms refers. Roscoe's Criminal Evidence [7 Ed.], p. 834 and ""post; Commonwealth v. Parker, 2 Cush 212; ""State v. Raymon, 20 Iowa 582. And the court should have so laid down the rule in this case. ""State v. Reeves, supra; State v. McCaskey, 104 Mo. 644. (4) Instruction number 3 is an elaborate treatise on the rule for weighing and measuring the degree of credit to be given each witness. Among other things it says the jury should take into consideration "his or her character." If it be conceded that, colloquially and loosely speaking, character and reputation are used synonymously, then it will also be conceded that the character and reputation of only one witness (the prosecutrix) was impeached by any testimony, whatever. There being no testimony to base the instruction upon, in this particular, it was error to give it. ""State v. Primm, 98 Mo. 368. (5) This instruction is further erroneous in submitting to the jury the proposition of law involved in the maxim """falsus in uno, falsus in omnibus," because there was no evidence to base it on. ""Bank v. Murdock, 62 Mo. 70; ""State v. Elkins, 63 Mo. 159; ""White v. Maxey, 64 Mo. 552; ""State v. Palmer, 88 Mo. 568. (6) The mere fact that witnesses contradict each other does not warrant such an instruction. ""Shenuit v. Brueggestadt, 8 Mo.App. 46. (7) It was prejudicial error for the court below to allow, over timely objection by the defense, testimony by the state on the reputation of the prosecutrix for truth, when that trait of character was not in issue, and when no attack had been made by the defense on her reputation in that behalf. ""Rogers v. Troost, 51 Mo. 470; ""Dudley v. McClure, 65 Mo. 241; ""State v. Cooper, 71 Mo. 436; 1 Thompson on Trials, sec. 550, and cases cited in notes. (8) Specific acts of unchastity and of lascivious conduct, on the part of the prosecutrix, were admissible in evidence against her in this kind of a case. This is the law in Missouri, and it is founded on both reason and authority. ""State v. Patterson, 88 Mo. 88; ""State v. Wheeler, 94 Mo. 252. (9) The remarks of Mr. Hoffman, the prosecuting attorney, in his argument were not based on the record. The defendant had not said what he had told the jury the defendant had positively sworn to on the stand. The court should have admonished and corrected him, and its failure to do so was error. ""State v. Mahly, 68 Mo. 316; ""State v. Lee, 66 Mo. 165; ""State v. Reed, 71 Mo. 200; ""State v. Martin, 74 Mo. 547; ""Cross v. State, 68 Ala. 476; ""Brown v. Swinford, 44 Wis. 282. (10) The remarks of Mr. Longan, in his closing address to the jury for the state, which are excepted to, were improper and constitute reversible error. He had no right to comment upon the defendant's not denying certain material things. R. S. 1889, sec. 4219; ""State v. Graves, 95 Mo. 510; ""State v. Elmer, 115 Mo. 401.

""R. F. Walker, Attorney General, for the state.

(1) The instructions in this case correctly declare the law and are exceedingly liberal to defendant. ""State v. Wheeler, 108 Mo. 658. They cover the entire case made by the testimony, and, read together, as they must be, are not subject to the criticism of defendant. (2) The court committed no error in protecting the prosecuting witness against the savage fishing cross-examination of the defense. Defendant's counsel had exceeded the limit of legitimate cross-examination, and when stopped by the court were engaged in a "fishing expedition." (3) Defendant is now complaining that the witnesses were permitted to remain in the court room after the defendant had requested their exclusion. The record, however, shows that the defendant withdrew the request and it was at his instance that they were permitted to remain. (4) There was no error in permitting the prosecutrix and her mother to remain in the court room during the argument of counsel. (5) The evidence of the defendant's offer of marriage after his arrest and preliminary hearing, was entirely competent. It tended to establish defendant's guilt; was an overt act of admission of guilt. ""State v. Brandenburg, 118 Mo. 181. It was equivalent to the thief returning the stolen goods. (6) The facts in this case are much stronger, looking at them from the standpoint of the state, than were those in ""State v. Fisher, 27 S.W. 1109, in which case this court refused to reverse the case because of the insufficiency of the testimony. (7) The remarks of counsel for the state, in their argument to the jury, present no grounds of error.

OPINION

Gantt, P. J.

The defendant appeals from a conviction under an indictment preferred at the April term, 1892, of the criminal court of Pettis county, charging him with the seduction of Luella Hamm, an unmarried female of good repute, under the age of eighteen years. He was duly arraigned and tried at the November term, 1893, and sentenced to six months' imprisonment in the county jail, and to pay a fine of $ 500.

There was abundant evidence to sustain the charge in the indictment, and no point is made on the indictment itself. No good purpose can be subserved by spreading the details of the seduction upon the face of the reports, and we shall consider the errors assigned in this court, with sufficient of the evidence only to indicate the grounds of our conclusions.

I. At the threshold of the trial, when the witnesses were sworn, the defendant asked and obtained an order for the separation of the witnesses. Thereupon the prosecuting attorney requested that the father of the prosecutrix be exempted from the rule and permitted to remain in the court room, which was allowed by the court, and thereupon the record shows that "the defendant withdrew his request and declined to accept the ruling of the court for the separation with the condition that the father be permitted to remain." This is assigned as error.

The point is not tenable, on two grounds. First, it was within the discretion of the trial court and it was entirely competent for the court to so frame its order as to meet the requirements of justice. State v. Hughes, 71 Mo. 633; 1 Bishop on Crim. Proc. [3 Ed.] sec. 1189. Second. The objection was waived by the act of defendant and no exception was saved to the order of the court.

II. When the mother of the prosecutrix was on the witness stand, the prosecuting attorney asked her if her daughter had any conversation with her about defendant, to which defendant very properly objected unless defendant was present. Mrs. Hamm then stated defendant was not present, but the court permitted her to answer and she testified that her daughter told her they were engaged to be married. Of course, this was error, but, when considered with defendant's own testimony on the stand, and his admissions in his letters, that he had promised to marry the prosecutrix, it is no ground for reversal. It was not prejudicial, under the facts of the case, but, it was clearly incompetent, standing alone, and we can not understand why it was asked, or, if asked, why admitted.

III. When the state was engaged in proving the reputation of the prosecutrix for chastity, the witnesses, as usual, displayed their inability to grasp the meaning of the phrase "general reputation for chastity,' and the learned judge, in endeavoring to educate them, went into a full explanation of the matter to the witness Idol, and closed it with this question: "Now do you know what that young woman's reputation is, generally, in the neighborhood in which she lives, for virtue, truth and chastity?" And the witness answered he did, and that it was good. No other witness was asked as to her reputation for truth, and no effort was made to bolster her testimony. We are now asked to reverse this case because the word "truth" was included in the question with "virtue" and "chastity." In other words, the contention is that evidence of reputation for chastity alone was competent.

But a reading of the statute will show that it is not confined to chastity alone, but its language is "of good repute." While her character for chastity is the predominant idea of the section, we see no error in proving her general good repute including her truthfulness. But if this were not so, the mere causal use of the word "truth" once in an examination of four or five witnesses as to her reputation for chastity is no ground for reversal.

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