The State v. Beverly
| Decision Date | 05 March 1907 |
| Citation | 100 S.W. 463,201 Mo. 550 |
| Parties | THE STATE v. P. E. BEVERLY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Oregon Circuit Court. -- Hon. Wm. N. Evans, Judge.
Affirmed.
A. H Livingston for appellant.
(1) Concubinage is the cohabiting of a man and woman who are not legally married, and the gravamen of the offense of taking away a female from a person having legal charge of her for the purpose of concubinage, is the intent with which she is taken, and this intent may be, of course, gathered from all the facts and circumstances in evidence. Under the statute and the adjudications of this court this is a crime consisting of intent wholly. If the intent is shown to exist at the time of taking, the offense is complete, regardless of the subsequent acts of the parties toward each other. Upon the contrary, if the intent is lacking at the time the female is taken away, no subsequent acts of the party taking can make the offense, however lewd or improper they may appear. State v. Adams, 179 Mo. 334; State v Gibson, 111 Mo. 95. (2) Under the law there is a total failure of proof in this case. There is not a fact or a circumstance that tends to prove that at the time the defendant took the prosecuting witness away there was any evil, impure or improper intent whatever. There is no evidence that the reprehensible conduct of the defendant at the church house that night was ever thought of before; but it shows, upon the contrary, that had the rain storm not come they would have gone on home without any improper words or conduct upon the part of the defendant. Next morning defendant took prosecuting witness to his home, she went to work for his wife and continued to do so up to the time that her father went and took her away. The fact that the girl did not want to return with her father because she thought he would whip her -- a young woman of sixteen years of age -- shows the dread and terror under which she lived at her home. Under the case made by the State every element of the crime charged was not only not established, but disproven. That the court should have sustained defendant's demurrer to the testimony we think will hardly be disputed, in view of the repeated adjudications of this court in cases of the same class. State v. Roebeck, 158 Mo. 130; State v Wilkinson, 121 Mo. 485; State v. Gibson, 111 Mo. 95. (3) The verdict rendered in this case is "without form and void," and no judgment can rest thereon.
Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
(1) In his motion for a new trial, defendant, for the first time, attempts to save his exceptions to the failure of the court to instruct on all the law applicable. As he failed to save his exceptions at the time of the alleged failure, defendant cannot now complain of such failure. State v. Cantlin, 118 Mo. 111; State v. Urspruch, 190 Mo. 50. (2) The way and manner in which defendant met prosecutrix and clandestinely got her away from her home and from her parents were circumstances to consider in determining what was his intention; and the same may also be said of defendant's statement to Mr. Hoag and to Miss Hoag as to what he intended to do with prosecutrix. State v. Neasby, 188 Mo. 472; Henderson v. People, 124 Ill. 614; State v. Bobbst, 131 Mo. 338; Slocum v. People, 90 Ill. 276; Bishop on Stat. Crimes, 637. It was not necessary, in a prosecution of this character, that the prosecutrix should be corroborated. State v. Stone, 106 Mo. 7. When all of the evidence is considered, it will readily be seen that there was sufficient to warrant the conviction of the defendant; and that the same fully comes up to the requirement in this kind of a case. State v. Richardson, 117 Mo. 586; State v. Bussey, 58 Kan. 679. The rule of law in this State, as often stated, is that where there is substantial evidence tending to support the verdict of guilty, this court will not interfere, but will defer to the finding of the jury and the trial court. State v. Smith, 190 Mo. 706; State v. Payne, 194 Mo. 442; State v. Groves, 194 Mo. 452; State v. Williams, 186 Mo. 128; State v. Williams, 149 Mo. 496; State v. Swisher, 186 Mo. 8.
This cause is here upon appeal from a judgment in the circuit court of Oregon county, convicting the defendant for taking one Emma Blankenship, a female under the age of eighteen years, from her father, J. M. Blankenship, for the purpose of concubinage. On the 8th of March, 1905, the prosecuting attorney filed an information duly verified, charging the defendant with the offense above indicated.
The act was alleged to have been committed on the 7th of March, 1905, in Oregon county, Missouri. The State's evidence tended to prove that prosecutrix was the daughter of J. M. Blankenship and lived with her father and mother in Oak Grove township, in Oregon county. That in December, 1904, defendant asked Mr. Blankenship to let prosecutrix go and live with defendant's family, but Mr. Blankenship declined, saying that his wife's health was such as to require the daughter to be at home. About one week before the commission of the alleged crime, the defendant visited Mr. Blankenship's home, talked to prosecutrix and remained there all night. On this occasion the father heard defendant ask prosecutrix if she would go and stay with him, but prosecutrix said she could not. On the afternoon of the day the crime is charged to have been committed, the defendant was again at the home of the Blankenships and shortly after defendant left prosecutrix was missed by her father who hunted for her until 1 o'clock that night. On the 11th of March they found the prosecutrix over at defendant's home living with defendant and his wife, both of whom objected to her leaving them. The State's evidence also shows that prosecutrix was only sixteen years of age at this time and neither of her parents consented to her going with defendant. Prosecutrix testified that she always lived with her father prior to the time she went home with the defendant; that defendant had made arrangements with her to go home with him; that he came to her father's on the afternoon of March 7, 1905; that she got on defendant's horse and rode off behind him. She further testified that none of her family knew she was going and that she and defendant rode to the New Salem church in the country, where they went in and stayed all night; that the defendant gave as his reason for stopping at the church that it was raining and that the water was up and it was about dark. This church, however, was shown to have been situated at a place beyond the creek and after they had crossed the creek. It was also shown that defendant was drinking that afternoon and tried to get the prosecutrix to drink some whiskey, but she declined. In the church where the defendant took prosecutrix to stay all night, the defendant made a pallet on the floor near the stove, took prosecutrix in his arm, and endeavored to have sexual intercourse with her, but there was no penetration. The next morning the defendant and prosecutrix left the church before daylight and rode on to defendant's home. On the road defendant told prosecutrix that she must not do the way she did that night, that she was not the kind of a girl he thought she was, and that she was missing half her life. Defendant also tried to persuade prosecutrix to get down off the horse and have sexual intercourse with him on the road, but she declined. Prosecutrix further testified that defendant's wife had agreed to pay her one dollar a week to come over to her home and work for her. The defendant gave a letter to Miss Leona Hoag and asked her to deliver it to prosecutrix, but the letter was given to someone else. This was a short time before the commission of the alleged crime. To James Hoag the defendant said that he had been to see the parents of prosecutrix, and that they would not let prosecutrix come out to the gate to talk to him and did not treat him right. He further said: "The girl is going to leave; I will see that she does, and will furnish her the money to send her to any old place." The State's evidence further tended to show that there were several families residing around and in sight of the New Salem church that defendant and prosecutrix spent the night in.
The defendant testified that he had nothing to do with arranging for prosecutrix to come to his house; that his wife attended to that matter. That he went for prosecutrix at his wife's request, and took her home with him on his horse. He said that on account of the hard rain he concluded to stop at the New Salem church and wait until the rain was over. That there had been a funeral there that day and there was a fire in the stove, so they went in and waited; that it kept on raining and got very dark so he concluded it was best to remain there all night. He admitted that he made a pallet down by the side of the stove and invited prosecutrix to come over and share his bed, and she came. He also admitted having his arm around prosecutrix, but denied that there was any improper conduct between them. He further stated that prosecutrix was going to work for his wife for one dollar a week; and he also denied making the statements testified to by State's witnesses, James Hoag and Miss Leona Hoag. Defendant's wife testified that she had written to prosecutrix to come and stay with her and agreed to pay her one dollar a week for her work; that she sent defendant to bring prosecutrix home and that prosecutrix remained at her home six days; during a part of the time defendant was away from home.
This is a sufficient statement of the main facts developed at the trial in order to determine the legal propositions disclosed by the record. At the...
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