The State v. Brandenburg

• Decision Date: 21 November 1893
• Parties: The State v. Brandenburg, Appellant
• Court: Missouri Supreme Court

23 S.W. 1080

118 Mo. 181

The State v. Brandenburg, Appellant

Supreme Court of Missouri, Second Division

November 21, 1893

Appeal from Montgomery Circuit Court. -- Hon. E. M. Hughes, Judge.

Affirmed.

Edmonston & Cullen for appellant.

(1) The indictment is insufficient. It should allege the age of the girl and it or the record should read, "Sworn and charged to inquire into and for the body of Montgomery county." State v. Brooks, 94 Mo. 121; State v. Freeman, 21 Mo. 481; State v. Vincent, 91 Mo. 665. (2) It was error to allow the witnesses, Appling MacMahan and Bellamy to testify to the reputation of the prosecutrix. The state must by testimony show affirmatively that chastity continued down to the very day of seduction. State v. Dietrick, 51 Iowa 467; State v Wells, 48 Iowa 671; State v. Gates, 6 N.W. 404; State v. McCasky, 104 Mo. 644; Carpenter v People, 8 Barb. (N. Y.) 603; Bishop on Statutory Crimes [2 Ed.], sec. 639. (3) Evidence of defendant's conduct towards the girl before and after the seduction is admissible to determine whether consent was obtained by seductive arts. State v. Curran, 3 Am. Cr. Rep. 405; Lewis v. People, 37 Mich. 518; People v. Gould, 70 Mich. 240; Callahan v. State, 63 Ind. 198; Wood v. State, 48 Ga. 192. (4) Again, he was entitled to this testimony to show that there was no deceit, no broken promises, no misleading, in fact, no seduction. Deceit is the gravamen of the offense and where there is no deceit, no subtle means, no blandishments, nothing but a plain blunt offer of marriage, and that not accepted, not relied upon, but rejected and deferred, there is no seduction. People v. Gould, 70 Mich. 240; State v. Horton, 100 N.C. 443; Bailey v. O'Bannon, 28 Mo.App. 39; State v. Reeves, 97 Mo. 668; Smith v. Milburn, 17 Iowa 31; Baird v. Boehner, 33 N.W. 694; State v. Patterson, 88 Mo. 94; Wharton on Criminal Law [9 Ed.], sec. 1758. (5) The court erred in its instruction defining "good repute." "Good repute" as used in our statute means the same as "previous chaste character" and before the jury can convict they must believe beyond a reasonable doubt that the woman is chaste, not of good reputation. State v. Patterson, 88 Mo. 88; State v. Hill, 91 Mo. 429; State v. Wheeler, 84 Mo. 253; State v. Primm, 98 Mo. 368. (6) The court should have instructed the jury that defendant was a competent witness in his own behalf; that they were the judges of the credibility of the witnesses and the weight of the evidence; that no conviction could be had unless the prosecutrix was induced to consent by reason of a promise and a reliance upon it and they should disregard all statements made by the attorney Ball about the defendant's fleeing. It was the court's duty to instruct on all these points and all others in the case even though not requested. State v. Palmer, 88 Mo. 508, and State v. Banks, 73 Mo. 592. That there must be a reliance on the promise and that it must bear the relation of cause and effect to the seduction is settled law. Carney v. State, 79 Ala. 14; Phillips v. State, 108 Ind. 406; State v. Eckler, 106 Mo. 585.

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

(1) The indictment is in the language of the statute and clearly charges the offense of which defendant was convicted. Revised Statutes, 1889, section 3486. (2) The remarks of attorney Ball were legitimate and authorized by the record. He had a right to draw his own conclusions, and suggest them to the jury. (3) The fact that defendant may have been willing to marry prosecutrix was not a matter of defense, and hence, no error was committed by the trial court in excluding his testimony, or in refusing the instructions asked by him. Revised Statutes, 1889, section 3486.

OPINION

Burgess, J.

-- The defendant was convicted in the circuit court of Montgomery county for seducing and debauching one Mattie Owens, an unmarried female of good repute and under eighteen years of age. The case is in this court on his appeal.

The facts developed by the testimony are, that during December, 1890, and January, 1891, defendant boarded at the home of the prosecutrix, at Danville, Montgomery county, Missouri; that defendant and the prosecutrix were engaged to be married. The prosecutrix testified that on December 26, defendant asked her to have sexual intercourse with him. She replied, "it was not right;" when he said, "it wouldn't be no harm, we are engaged," and she then consented; that they had sexual intercourse twice during January, 1891, and each time they had about the same conversation; that the parents of the prosecutrix refused to permit defendant to come to the home of the prosecutrix, and refused to permit her to marry defendant; that defendant always expressed a willingness to marry her, and never refused. The mother of prosecutrix testified that she forbade her daughter marrying defendant, and ordered him not to come on the place again; that she told her daughter she had rather see her dead than marry defendant; that she and her husband offered to settle the case for less than $ 100. Letters written by defendant to prosecutrix were identified and read in evidence, in which defendant renewed his offer to marry her. The testimony gives the prosecutrix a good reputation for chastity and virtue.

The indictment is well enough and good under the section of the statute under which it was drawn, containing as it does all necessary averments. State v. Eckler, 106 Mo. 585, 17 S.W. 814; State v. Primm, 98 Mo. 368, 11 S.W. 732.

It is contended by counsel for defendant that the court committed error in allowing the witnesses, MacMahan and Bellamy, to testify to the reputation of the prosecutrix, because they were not qualified to do so. This contention is not sustained by the record, which discloses the fact that each one of these witnesses testified that he was acquainted with Mattie Owens. One of them, Bellamy, that she went to school to him in 1890, and they both testified that they had never heard anything against her. In passing upon a similar question by this court, Sherwood, J., said: "That reputation may, with justice, well be called good which no slanderer has ever ventured to even so much as question. A blameless life oftentimes, though not always, gives origin to such a reputation. But when it can be said of a man by those well acquainted with him that they never heard his reputation, as to truth and morals, discussed, denied or doubted, it is equivalent to passing upon him the highest encomium. The authorities abundantly establish that the person testifying need not base his knowledge on what is 'generally said' of the person whose character is in question, but may base his knowledge of the reputation of such person on evidence of the negative nature above noted." State v. Grate, 68 Mo. 22, and authorities cited.

Defendant was introduced as a witness in his own behalf, and asked whether or not it was his honest intention to marry the prosecuting witness, if he had always held himself in readiness and willing to marry her, and if he was not then ready and willing to do so. These questions were all objected to by the state, the objections sustained, and the defendant duly excepted. It is urged with much earnestness that the court should have permitted these questions to be answered as the answer thereto would have shown that defendant acted in good faith in promising to marry Mattie Owens, and was not guilty of any deception in promising to do so. It is the act of seducing and debauching which is the gravamen of the offense, and, if...