The State v. Davis

• Citation: 42 S.W. 1083,141 Mo. 522
• Parties: The State v. Davis, Appellant
• Decision Date: 23 November 1897
• Court: Missouri Supreme Court

42 S.W. 1083

141 Mo. 522

The State v. Davis, Appellant

Supreme Court of Missouri, Second Division

November 23, 1897

Appeal from Mercer Circuit Court. -- Hon. Paris C. Stepp, Judge.

Reversed and remanded.

H. J Alley, C. H. Douglas, and H. J. Alley, Jr., for appellant.

(1) The testimony of the prosecuting witness, as to the promise of marriage, was not corroborated in any manner, or by any person, or by any circumstances, as would satisfy the provisions of section 4212, Revised Statutes of 1889, which requires the promise of marriage to be corroborated to the same extent required of the principal witness in perjury. (2) The court erred in giving instruction 1 on the part of the State. This instruction was clearly erroneous in this kind of a case, and ought not to have been given. State v Heed, 57 Mo. 252. We are not complaining of any failure of the State to instruct on the whole law of the case, but complain that the instruction 1, given by the State, was in itself clearly erroneous and misleading.

Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.

(1) As to the first proposition of defendant that the court erred in refusing to give instruction 1, we would say that the effect of the action of the defendant's counsel was a demurrer to the testimony. The rule is that when the inference of guilt can be reasonably drawn from the evidence in a criminal case this court will not interfere with the verdict on the ground of insufficiency of the evidence to support it. State v. Jackson, 106 Mo. 181; State v Banks, 118 Mo. 117; State v. Eisenhour, 132 Mo. 149. (2) Objections to the giving or refusing of instructions can not be raised for the first time on appeal. State v. Arnewine, 136 Mo. 130. (3) There was no error in excluding the letter offered in evidence, because it was simply a collateral matter, and the court could exercise its discretion in the rejection of the testimony offered in regard to collateral matters. Adriance v. Arnot, 31 Mo. 471; Craighead v. Wells & Nickel, 21 Mo. 404.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess, J.

Defendant was indicted and convicted in the circuit court of Mercer county for the seduction under promise of marriage of Menecie Scoles, an unmarried female of good repute, under eighteen years of age, and his punishment fixed at two years' imprisonment in the penitentiary. After unsuccessful motions for new trial and in arrest he appeals.

Defendant and Menecie Scoles lived in the same neighborhood. About the second week in March, 1895, she went to the house of defendant's father where defendant then resided, to work, but did not remain quite a week until she returned to her father's house. While she remained at the house of defendant's father, defendant began making love to her. They had then been acquainted about three years. After her return home defendant visited her a few times, promised to marry her, and under such promise defendant seduced her, and got her with child, of which she was thereafter delivered. She was of good repute up to the time that she is charged to have been seduced by defendant.

It is insisted by defendant that there was no evidence to authorize the verdict, in this, that the testimony of the prosecuting witness, Menecie Scoles, as to the promise of marriage, was not corroborated as required by section 4212, Revised Statutes 1889, and that she was not shown to be of good repute at the time of the commission of the alleged offense.

That section provides that "in trials for seduction under promise of marriage, the evidence of the woman as to such promise must be corroborated to the same extent required of the principal witness in perjury." In cases of perjury it is not necessary that the corroborating circumstances should be equal or tantamount to those testified to by the principal witness, but they must strongly corroborate the testimony of such witness. State v. Heed, 57 Mo 254. So, in cases of seduction under promise of marriage, there must be some evidence strongly corroborative of the promise of marriage independent of the principal witness. "Any material circumstance proved by other witnesses, in confirmation of the witness who gave the direct testimony, will be sufficient. . ....