The State v. Day
| Decision Date | 16 May 1905 |
| Citation | 87 S.W. 465,188 Mo. 359 |
| Parties | THE STATE v. DAY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Johnson Circuit Court. -- Hon. Wm. L. Jarrott, Judge.
Affirmed.
J. W Suddath for appellant.
(1) Evidence of bad reputation for chastity is always admissible to affect the credibility of a witness. State v Raven, 115 Mo. 419; State v. Weeden, 133 Mo 70; State v. Sibley, 131 Mo. 531, 132 Mo. 102; State v. Duffey, 128 Mo. 549; Markham v. Herrick, 82 Mo.App. 32. (2) In a prosecution for carnal knowledge of a female between fourteen and eighteen years of age, evidence of bad reputation for chastity of the prosecuting witness after the act is admissible to affect her credibility as a witness, after she has testified. State v. Babst, 131 Mo. 328; State v. Summar, 143 Mo. 330; McKern v. Calvert, 59 Mo. 243.
Herbert S. Hadley, Attorney-General, and John Kennish, Assistant Attorney-General, for the State; Chas. E. Morrow of counsel.
(1) Every question of law sought to be presented in the refused instructions, as applicable to the facts in evidence, was embodied in instructions given by the court, which correctly and fully covered all the law of the case. And "where the instructions given are correct and fully cover the case, it is not error to refuse defendant's instructions." State v. Frank, 159 Mo. 535; State v. Atchley, 84 S.W. 984; State v. Nelson, 166 Mo. 191; State v. Bradford, 156 Mo. 91. (2) The court did not commit error in limiting the inquiry as to the chastity of the prosecutrix to the time of the arrest of defendant. State v. Knock, 142 Mo. 515; Bookhout v. State, 66 Wis. 415; People v. Brewer, 27 Mich. 134.
The defendant was charged, by information filed in the circuit court of Johnson county, with the crime of having carnal knowledge of an unmarried female, Jennie Arwood, of previously chaste character, between the ages of fourteen and eighteen years, at said county, on the 20th day of July, 1903. Upon a plea of not guilty, he was put upon his trial, convicted, and his punishment assessed at two years in the penitentiary. From that judgment defendant appealed to this court.
The errors complained of in the motion for a new trial, in addition to the general grounds, are: That error was committed in admitting incompetent evidence offered by the State, and in excluding competent evidence offered by the defendant; and in giving instructions for the State, and in refusing instructions asked by the defendant.
There was also a motion in arrest of judgment, containing the usual grounds.
The evidence on the trial tended to prove the following facts:
Jennie Arwood, the prosecuting witness, was born in the State of Tennessee, March 7, 1886, and in the year 1902, with her father, step-mother, three half-brothers and one half-sister, moved to Johnson county, Missouri. During the summer of 1903, covering the date of the offense charged, A. J. Arwood, father of Jennie Arwood, and his family lived on a farm rented from the defendant's father and located about six or seven miles southeast of the city of Holden in said county. Before moving on said farm, he had lived in a house rented from the defendant.
The defendant, Frank Day, was a married man, about thirty-five years of age, and in the summer of 1903, lived in the city of Holden. During that year he was a mail carrier on a rural route, which passed along the home of A. J. Arwood and his family. In driving over his route he would arrive at the home of the prosecutrix about 11:30 a. m. each day. There he usually fed his team and ate dinner with the Arwood family.
In the latter part of May, 1903, the defendant got permission from Jennie Arwood's parents to take her to his home in Holden to help his wife, who, he said, was not well. The prosecutrix remained but a few days in Holden. While she was riding with the defendant going to Holden and again in returning to her home, the defendant asked her "to be his next woman," and took improper liberties with her person. A few days after the prosecutrix returned from Holden, being about the first day of June, 1903, the defendant, as usual, stopped at the Arwood home for dinner. Mrs. Arwood was in town, Jennie's father was out in the field at work, and the younger children were with him. The prosecutrix was in the house alone preparing the dinner. The defendant went to the house and after making improper advances to the prosecutrix, took hold of her, pulled her from the kitchen into the bedroom and there had sexual intercourse with her. He again had such intercourse with the prosecutrix at three or four different times thereafter during the summer. At one time he went to the Arwood home on Sunday when the parents of the prosecutrix were away. The younger children and Jennie were at home. The defendant took Jennie into his cart and drove out in the woods for the same purpose and with the same result. A child was born to the prosecutrix on the 28th day of February, 1904. There was evidence that the prosecutrix was an unmarried female; that she was over fourteen and under eighteen years of age, and of previous chaste character.
The defendant denied all of the incriminating evidence introduced by the State, also offered evidence tending to prove that the prosecutrix was over the age of eighteen years at the time of the alleged offense, and that she was not of previous chaste character.
The information, omitting caption, is as follows:
Chas. E. Morrow.
A reversal of the judgment in this case is asked on three grounds: First. That the verdict is so clearly the result of passion or prejudice that it ought not to be permitted to stand; that it is in the teeth of the credible evidence and the story of the prosecutrix is not to be believed; second, that the court erred in refusing defendant's instruction "C;" third, because the court excluded certain evidence as to the general reputation of the prosecutrix.
These assignments will be considered in the above order.
I. This is a prosecution under section 1838, Revised Statutes 1899. Unlike the statutes for the prosecution of perjury and seduction, it is not essential that the testimony of the prosecutrix shall be corroborated in order to sustain a verdict. [State v. Marcks, 140 Mo. 656, 41 S.W. 973; Boddie v. State, 52 Ala. 395.]
Neither does the consent of the injured female, if she is under the age of eighteen years, affect the criminality of the defendant's act in having sexual intercourse with her. [State v. Knock, 142 Mo. 515, 44 S.W. 235; State v. DeWitt, 186 Mo. 61, 84 S.W. 956; State v. Hamey, 168 Mo. 167, 198, 67 S.W. 620; State v. Hunter, 171 Mo. 435, 71 S.W. 675.]
Counsel for defendant, both in his oral argument and brief, earnestly assails the testimony of the prosecutrix as unreasonable and incredible, and dwells at much length on the failure of corroboration. Doubtless he pressed all these considerations on the jury, upon whom the duty devolved of passing upon the reliability of her testimony. We might content ourselves with saying this was purely a question of fact for the jury, inasmuch as no one will question for a moment that if the jury believed her testimony it was abundantly sufficient to support the verdict, but it occurs to us that there was no such absence of corroboration as counsel deems there was. That the father of the prosecutrix lived on the route which defendant daily traversed in carrying the mail, and that defendant daily stopped at her father's house to feed his team and take his own dinner is conceded; that defendant had availed himself of her services in the spring of 1903, to help his wife for several days, is also admitted. That soon after her return home from defendant's home, the defendant found the prosecutrix entirely alone, her mother absent in Holden on a shopping expedition, and the father at work a half mile from the house and the smaller children in the field with him, appears by the testimony of the father and mother as well as of the prosecutrix. That the defendant, if so minded, had an opportunity to commit the offense is not to be disputed. She testified unequivocally to the intercourse on that occasion and defendant denies it. In the nature of things they were the only two witnesses who could know the fact. The jury saw these two witnesses, had an opportunity of observing their demeanor on the witness stand, and it was their province to...
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