State v. De Witt
| Citation | 84 S.W. 956,186 Mo. 61 |
| Parties | THE STATE v. De WITT, Appellant |
| Decision Date | 31 January 1905 |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Louis City Circuit Court. -- Hon. Daniel G. Taylor Judge.
Reversed and remanded.
Claud D. Hall for appellant.
(1) The court failed to instruct the jury upon all the issues of law in the case in that the words "carnal knowledge" were not defined, nor was the jury instructed as to what was necessary to find in order to find defendant had had "carnal knowledge" of the prosecutrix. State v Grubb, 55 Kan. 680. (2) The verdict is not responsive to the charge, and is insufficient to support a judgment, in that it does not find that prosecutrix was "of previous chaste character." 22 Enc. Pl. and Pr., 873; Clark on Crim. Prac., 485; 1 Bish. New. Crim. Proc., sec. 1005; Wharton, Cr. Pl. and Pr. (9 Ed.), sec. 756; State v Pollock, 105 Mo.App. 273; People v. Cummings, 117 Cal. 497; Holmes v. State, 58 Neb. 297; Clay v. State, 43 Ala. 350; Huffman v. State, 89 Ala. 33; State v. Maxwell, 42 Iowa 208; State v. Ritchie, 3 La. Ann. 511; State v. Crump, 104 S.C. 762; State v. Bray, 89 S.C. 480; State v. McGee, 181 Mo. 312. (3) The giving of instruction 6 is a violation of the statute for it directly calls the attention of the jury to the fact that the defendant did not testify. State v. Robinson, 117 Mo. 663.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
(1) The verdict is sufficiently specific and certain. It amply supports and warrants the judgment and is not subject to defendant's technical criticisms. (2) While it was not necessary for the court to have instructed the jury that defendant's failure to testify should not be considered by them in arriving at a verdict, yet it was not reversible error to give it. The jury was by this instruction cautioned not to use such fact at arriving at a verdict. Certainly no error can be charged where the court instructs correctly as to a principle of law, though the same may not be necessary. Such fact was not referred to in a way that would prejudice the rights of the defendant, and it is only such reference that can be set up as harmful.
The defendant, a married man, was indicted by the grand jury, December 18, 1903, with unlawfully and feloniously having carnal knowledge of the body of Rosa Weild, an unmarried female of previous chaste character, under the age of eighteen and over fourteen years of age.
Defendant was duly arraigned and upon his trial before a jury, was convicted and sentenced to six months in the city jail and to pay a fine of five hundred dollars. From that sentence he appeals.
This prosecution is founded upon the act of the General Assembly, approved April 8, 1895, making it a felony for any person over the age of sixteen years to have carnal knowledge of any unmarried female of previous chaste character, between the ages of fourteen and eighteen years of age. The constitutionality of this act was settled in State v. Hamey, 168 Mo. 167, 67 S.W. 620.
The evidence tends to prove that the prosecutrix was a young woman, seventeen years of age at the time of the illegal intercourse on May 30, 1903, and of good reputation for chastity and virtue. Her home from her childhood had been in Hermann, Missouri. Some eight months previous to her deflowering, she had gone to the city of St. Louis and had been engaged as a waitress in a restaurant kept by her sister, Mrs. Field, Later on, she went to work as a house girl in the western part of the city. About two months prior to the thirtieth of May, 1903, she become acquainted with the defendant, a married man, who was in the habit of taking his meals at the said restaurant on Olive street; on the evening of May 30, 1903, she had expressed her intention of going to the Union Station to meet her sister whom she expected on the train from Hermann. The defendant offered to accompany her, and together they started to the station. On the street car he gave her some candy, of which he declined to eat himself. After eating the candy, she testified she felt strange, and the defendant, without going all the way to the station, took her to a house, No. 519 Theresa avenue, and took her to a room and he and she occupied the same bed all night and he had criminal intercourse with her. About four o'clock next morning he took her to her place of employment and left her. The evidence tends further to prove that defendant afterwards confessed to Mrs. Drossell and Miss Reed, who upbraided him for ruining the prosecutrix, and he said he would get a divorce and marry the girl. He admitted to them he had taken her to the Theresa avenue house and ruined her. There was an attempt to prove an alibi which the jury rejected. Other facts may be noted in the course of the opinion.
I. We see no merit in the contention that the demurrer to the evidence should have been sustained. The evidence abundantly established the fact that defendant had carnal knowledge of the prosecutrix. Her testimony clearly sustained this charge of the indictment and was corroborated by the admissions of the defendant to the other witness. Without recapitulating the evidence of the scandalous conduct of the defendant on this point, it suffices to say that unless the jury had rejected the testimony of the prosecutrix and the other witnesses, no other finding could have been made.
II. The previous chaste character of the prosecutrix was amply proved and no effort made to disprove it. The State assumed this burden and fully sustained it.
III. The failure of the court to define carnal knowledge is assigned as error.
On this subject the court throughout its instructions treated "carnal knowledge" and "sexual intercourse" as equivalent terms; thus defining carnal knowledge, if it needed any definition to a jury of ordinary intelligence, to mean sexual intercourse, the definition given these words by Webster and other lexicographers. While we do not think it was essential to define "carnal knowledge," the court practically did so by treating these words as equivalent to and interchangeable with sexual intercourse.
Nothing in State v. Grubb, 55 Kan. 678, 41 P. 951, and Davis v. State, 43 Tex. 189, militates against our conclusion on this point. In each of those cases the court was discussing the absence of proof of actual coition and the necessity for proving the same. Here the proof amply sustained the actual sexual intercourse. There was no error in the instruction on this point.
IV. A further contention is made that the court erred in instructing the jury "that the fact that the defendant did not testify should not be considered by the jury in arriving at a verdict in this case, and no juror should be prejudiced against the defendant because he did not testify in the case."
Our statute (sec. 2638, R. S. 1899), provides that: "If the accused shall not avail himself or herself of his or her right to testify, or of the testimony of the wife or husband, on the trial in the case, it shall not be construed to affect the innocence or guilt of the accused, nor shall the same raise any presumption of guilt, nor be referred to by any attorney in the case, nor be considered by the court or jury before whom the trial takes place."
Counsel for defendant urges that the giving of the foregoing instruction was a violation of section 2638, supra, and was a comment on the evidence.
The latter objection is clearly not tenable. Certainly it was not a prejudicial comment to defendant. Was it a violation of the statute to mention the failure to testify? Every juror knows that the defendant may testify if he sees fit and we have often ruled that it is reversible error for counsel for the State to comment upon such failure, but does this instruction in any way fall within the mischiefs which we have so often condemned? We think not. By it the jury were cautioned and prohibited from using such fact in arriving at a verdict. The jury are required to accept the law of the case from the court, and when the court positively directs them they shall not consider a certain fact, how can it be said that such a charge is prejudicial error? We are, however, confronted with what was said in State v. Robinson, 117 Mo. 649, 23 S.W. 1066. In that case, the defendant prayed an instruction that his failure to testify should not create any presumption against him, which was refused, and the refusal was assigned as error in this court. It was held not error, and it was added, "If the court had given such an instruction, it would have disobeyed the spirit if not the letter of the law." That such an instruction is not necessary and that it would not be error to refuse it, we may concede, but is it reversible error to give it in the form in which this sixth instruction was given in this case? Upon a full reconsideration of the point, we are satisfied it was not prejudicial to the defendant. It is the law that the jury shall not consider the failure of the defendant to testify, and how can it in reason be held error for the court to caution the jury against considering that which the law forbids? Taking the whole section together and the purpose of its enactment, we think it was designed to prevent the indulging of any adverse presumption by court or jury from the failure of defendant to testify, and to prohibit any adverse comment on that account, but to say that, when a court directs a jury they shall not consider such a failure to testify in making up their verdict, this amounts to an adverse comment, is illogical and unreasonable and we must reject such a conclusion. We think that, while it was unnecessary to give the instruction, it was not reversible error to do so.
V. Finally it is insisted that the...
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