State v. Wilson
| Decision Date | 12 December 1927 |
| Docket Number | 28254 |
| Citation | 300 S.W. 710 |
| Parties | STATE v. WILSON |
| Court | Missouri Supreme Court |
J. H Keith, of Ironton, for appellant.
North T. Gentry, Atty. Gen., and David P. Janes, Asst. Atty. Gen for the State.
In the circuit court of Reynolds county the appellant was charged with having carnal intercourse with a mare on or about February 20, 1926. He was tried and found guilty as charged by the information, and sentenced to the penitentiary for a term of two years, in accordance with the verdict, and appealed.
The information is based on section 3512, R. S. 1919. Two young women, aged 17 and 20 years respectively, testified substantially, as the evidence is summarized in appellant's statement, that they lived about two miles from Centerville, the county seat of Reynolds county; that on February 20, 1926, they were at the barn, and about three feet from the defendant, and saw him have intercourse with the mare. They saw his private parts, and, when he saw the young women, he jumped down and ran out of the barn. They had gone to the barn to hunt eggs, and were in the shed annexed to the barn, and looking through the window in one side of the barn. The appellant and the mare were in the barn, and the barn door was closed. The defendant and the rear end of the mare were at, and just inside, the window. On cross-examination, the older witness for the state, who was a married woman, was asked:
The defendant testified that he was 72 years of age; that 14 years before the trial he had suffered a physical injury, and that ever since the injury he had never been able to have sexual intercourse, and that he did not have sexual intercourse with a mare. A physician testified that he had found some gland trouble, and he did not think the defendant would be able to perform sexual intercourse; that, as long as the glands are there, he might be able to do so to a certain extent.
The first insistence in appellant's brief is that there is no evidence in the record to show that the offense was committed, if committed at all, in Reynolds county.
The witnesses for the state testified that they lived two miles from Centerville, and that the offense was committed in the barn where they were hunting eggs. The case seems to have been tried on the theory that there was no question about the venue. The court instructed the jury that, 'if you believe and find from the evidence in this case that the defendant, B. F. Wilson, at and in the county of Reynolds and state of Missouri,' etc. No exception was saved to any of the instructions in the motion for new trial.
In Carroll v. U.S. 267 U.S. 132, foot of 159, 45 S.Ct. 280, 287, 69 L.Ed. 543, 39 A. L. R. 790, 803, Chief Justice Taft quoted Judge Story in The Apollon, 9 Wheat. 362, 6 L.Ed. 111:
'It has been very justly observed at the bar that the court is bound to take notice of public facts and geographical positions; and that this remote part of the country has been infested, at different periods by smugglers, as a matter of general notoriety, and may be gathered from the public documents of the government.'
'We know in this way that Grand Rapids is about 152 miles from Detroit and that Detroit and its neighborhood along the Detroit river, which is the international boundary, is one of the active centers for introducing illegally into the country spirituous liquors for distribution into the interior.'
In State v. Pennington, 124 Mo. 388, 392, 27 S.W. 1106, 1107, Judge Sherwood said:
'Nor under the principle of the authorities cited, will it exceed the limits of the license accorded to judicial notice, to be aware of the fact that California is the county seat of Moniteau county, and if we may be aware of this, inasmuch as we know where the boundaries of Moniteau county are, we easily can ascertain that three miles west of California will not reach the western boundary of that county.
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