The State v. Allen
| Decision Date | 15 February 1916 |
| Parties | THE STATE v. W. F. ALLEN, Appellant |
| Court | Missouri Supreme Court |
Appeal from Stoddard Circuit Court. -- Hon. E. M. Dearing, Judge.
Reversed and remanded.
Mozley & Woody and J. W. Farris for appellant.
(1) The record in this case discloses that, on the first day of the March term, 1914, of the circuit court of Stoddard county the same being the return term of the information, defendant filed his application for a change of venue under R. S. 1909 sec. 5198. That application has never been disposed of, but is still pending. The application being in due form, it became mandatory upon the court to grant the change, and make such disposition of the case as required by statute. R. S 1909, secs. 5198, 5199; State v. Spivey, 191 Mo. 87; State v. Shipman, 93 Mo. 147. (2) The cause was not set down for trial by Hon. W. S. C. Walker, the judge of said court, and there is nothing to show that Judge Dearing was called in by Judge Walker. R. S. 1909, sec. 5201; State v. Gillham, 174 Mo. 671. (3) Defendant was charged with violating section 2, page 219, Laws 1913. The offense, if committed at all, was committed during either the month of March or the month of April, 1913. Said section 2 did not become a law until June 23, 1913, hence defendant could not have violated said law in March or April, 1913. Constitution, art. 4, sec. 36; State v. McMahon, 234 Mo. 611; State v. Schenk, 238 Mo. 429; State v. Howard, 175 S.W. 58; Neef v. McGuire, 52 Mo. 493; Ex parte Smith, 135 Mo. 223; State v. Finley, 187 Mo.App. 72. (4) Under all the facts and circumstances detailed in evidence in this case, the character of the parties, the time and place where this offense is, according to the testimony of the prosecuting witness, alleged to have been committed, the conduct of the parties after the alleged commission, the time which elapsed, between the alleged commission and the date when prosecuting witness told her mother, the means used by her mother to compel her to make the charge, all go to show that the story of the prosecuting witness is an unreasonable one. The testimony is not sufficient to prove the guilt of defendant beyond a reasonable doubt, and his instruction in the nature of a demurrer to the evidence should have been given. State v. Jaeger, 66 Mo. 173; State v. Primm, 98 Mo. 368; State v. Burgdorf, 53 Mo. 65; Harper v. Railroad, 186 Mo.App. 296. (5) Defendant was not arraigned, therefore, his motion in arrest of judgment should have been sustained. R. S. 1909, sec. 5165; 12 Cyc. 344; 2 Ency. Pl. & Pr. 787; State v. Williams, 117 Mo. 379; Shelp v. U.S. 81 F. 694; Crain v. U.S. 162 U.S. 625; State v. Cisco, 186 Mo. 49; Secs. 22 and 30, art. 2, Constitution.
John T. Barker, Attorney-General, and Lee B. Ewing, Assistant Attorney-General, for the State.
(1) The information is good. State v. Salts, 263 Mo. 308; Kelly's Crim. Law & Practice, sec. 535; State v. Clark, 158 Mo.App. 489; State v. Nave, 185 Mo. 125; Sec. 4472, R. S. 1909. (2) Appellant was not arraigned, but he was present at the trial and made no objection or exception thereto. He offered evidence in his defense and also testified himself. By going to trial without objection, he waived arraignment. State v. O'Kelley, 258 Mo. 345; State v. Gould, 261 Mo. 694. (3) Appellant filed application for change of venue. The transcript does not disclose the grounds for the application, nor whether or not the trial court ruled thereon. Neither does it show that appellant made any objection or exception to the ruling of the court, or his failure to rule thereon. It does disclose that Judge Walker, the regular judge of the circuit, called in Judge E. M. Dearing of the Twenty-first Circuit and appellant went to trial without objection before the latter judge. Nor did appellant present the question to the trial court for review, either in his motion for a new trial or in arrest of judgment. This record does not convict the trial court of error in this regard. Drainage District v. Richardson, 227 Mo. 252; Leslie v. Chase, 200 Mo. 263; Wolff v. Ward, 104 Mo. 127. (4) There was no reversible error in the trial court's rulings upon admission and rejection of testimony.
Defendant, convicted in the circuit court of Stoddard County for a violation of the provisions of section 4472, Revised Statutes 1909, for that he had carnal knowledge of a female under the age of consent, after the usual motions for a new trial and in arrest of judgment, has appealed.
The information upon which this prosecution is bottomed was filed on the 5th day of February, 1914. It charges the defendant with committing the alleged offense in March, 1913. Except in the behalf discussed in the opinion, the information is conventional and we need not cumber the record with the whole of it, but we mention in passing that as to the ages of the persons involved it follows the amendment of 1913, which amendment went into effect subsequent to the date of the commission of the alleged offense.
The facts in brief, so far as they are pertinent and so far as we do not set them out in our opinion, run thus:
Defendant is a physician and surgeon now practicing in the city of St. Louis, but at the time of the alleged commission of the offense charged, engaged, a portion of his time at least, in practicing his profession in Stoddard County, Missouri, and having offices at one time or another both in Dexter and in Bloomfield in that county. Defendant while practicing in Stoddard County seems to have specialized in the treatment of diseases of the eye and was thus brought professionally into contact with the prosecuting witness, one Hattie Allard, aged at the time set out in the information, sixteen years, lacking a few days. Having been treated by defendant for an affection of the eyes while he was in Dexter, she followed him to Bloomfield for the purpose, as the record shows, of having the treatment continued. She remained in Bloomfield for some five weeks taking such treatment, and while thus under the care of defendant the first sexual act of defendant with her took place in the latter part of March or the first days of April, 1913. From that time on, until November, 1913, as occasion offered, other acts of sexual intercourse occurred between defendant and the prosecuting witness, the last act occurring in the room of defendant at a hotel in Dexter on Thanksgiving Day, 1913. While the prosecuting witness and defendant were in this room, the mother of the former, suspecting the relations existing, slipped into an adjoining room and overheard suspicious noises which she deemed to indicate that defendant and her daughter were engaged in illicit intercourse. Going into this room the moment defendant unlocked the door, she found, she tells us, prosecutrix sitting in defendant's lap. Soon thereafter this prosecution was commenced. Other elements necessary to be proven are sufficiently shown by the record. The State showed a telephone conversation between defendant and the prosecutrix, and likewise a conversation between defendant and a Mrs. Kimbell, which to an extent corroborates the testimony of the prosecutrix.
On cross-examination of the prosecutrix and likewise of her mother, who testified for the State, it was shown that for some five days after the mother had, as she says, caught her daughter and defendant in the compromising position mentioned, prosecutrix had continued to deny any illicit relations with defendant, and that it was not until the mother had slapped prosecutrix's face repeatedly and otherwise physically maltreated her, that she confessed these relations.
The defense was not guilty in the broadest sense of the word, in this, that defendant denied ever having been intimate with prosecutrix and averred that the sole relation existing was that of physician and patient. The age of defendant is not definitely shown, but it is shown that he attended medical school four years prior to the year 1897 and that he graduated as a physician and surgeon in that year. His general reputation for morality and chastity is shown by the record to be good and in no wise is this denied or controverted by the State.
Such further facts as may be required to make clear the points discussed will be found set out in our opinion, at which place they may appositely serve to make clear our discussion of the questions mooted.
I. Defendant by his learned counsel contends that inasmuch as the record fails to disclose either an arraignment or a plea, he is for this entitled to a reversal out of hand. The record also shows that no objection was lodged anywhere touching the lack of an arraignment and plea till the case got here, and that defendant was tried in all respects just as if a formal arraignment and plea had been had -- as they doubtless were, if we were permitted, as we are not, to speculate upon facts on which the record is silent.
Defendant's learned counsel concede that the cases of State v O'Kelley, 258 Mo. 345, 167 S.W. 980, and State v. Gould, 261 Mo. 694, 170 S.W. 868, are against this contention, but they cite and quote at some length from Crain v. United States, 162 U.S. 625, 40 L.Ed. 1097, 16 S.Ct. 952, and largely upon the authority of the latter case, insist that we were wrong in the O'Kelley and Gould cases, and urge us to overrule the latter cases and get back to the good old technical rule of other days. We are not disposed to overrule the holding made in the O'Kelley case for the reason so ably urged upon us by counsel, or for any other reason; especially since about the time the O'Kelley case was ruled, the Supreme Court of the United States in an opinion in which all concurred, overruled the case of Crain v. United States, supra, cited to us...
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