The State v. Eisenhour
| Decision Date | 21 January 1896 |
| Parties | The State v. Eisenhour, Appellant |
| Court | Missouri Supreme Court |
Appeal from Carroll Circuit Court. -- Hon. W. W. Rucker, Judge.
Affirmed.
Hale & Son, and Lozier & Morris, and McCann for appellant.
(1) The court erred in allowing the prosecuting witness to state against the objection of defendant, that a day or two before the trial he came back on Tuesday evening and promised to marry her. This was objected to as incompetent. Objection overruled, and defendant excepted. This was more than a year after the alleged seduction, and was not evidence tending to prove that any promise of marriage existed at the time of the alleged seduction. State v. Pattison, 88 Mo. 100. (2) The court erred in refusing to allow the witness, Dr. G R. Highsmith, to state the reasons which the prosecuting witness and her mother gave as to why they wanted her examined. Defendant was entitled to all that then and there occurred. It was not objected to as a confidential communication, and the doctor was willing to tell it. Her admissions are competent evidence as to the contract of marriage, age, etc. (3) The court erred in refusing to give the demurrer to the evidence asked by defendant at the close of plaintiff's testimony in chief. We insist that the evidence in chief was not sufficient to establish the contract of marriage or the age of the prosecuting witness. (4) The court erred in refusing to allow the witness Caroline Jenkins, to state how long she had known the infant, Ada Jenkins, before the birth of her own child, the birth of which she had given. It was material, in view of the conflicting evidence in the case, as to the date of the birth of Ada Jenkins, which was a vital point in the case. The form of the question was not objected to by counsel for state.
R. F. Walker, attorney general, and Morton Jourdan, assistant attorney general, for the state.
(1) The court very properly permitted the prosecutrix to answer the question as to what conversation she had with the defendant on Tuesday before the trial on Thursday. Grounds of objection to evidence must always be specific, or this court will disregard them. State v. Smith, 114 Mo. 406; State v. Moore, 117 Mo. 395; State v. Harlan, 32 S.W. 997. (2) The reason assigned was "incompetent." This court has held that equivalent to no reason at all. Stone v. Hunt, 114 Mo. 66. (3) The rule is the same in criminal as in civil cases. State v. Blunt, 110 Mo. 322. (4) Whether or not a party should be permitted to call a witness after the formal closing of a case is a matter entirely within the discretion of the trial court, and will not be reviewed by this court, unless it affirmatively appears that such discretion has been abused. State v. Pennington, 124 Mo. 390; State v. Smith, 80 Mo. 516. (5) The instructions were exceedingly liberal to the defendant, more so in fact than authorized by the law, as a casual reading of the now established leading cases in this state will show. State v. Wheeler, 108 Mo. 658; State v. McCaskey, 104 Mo. 644; State v. Reeves, 97 Mo. 667; State v. Hill, 91 Mo. 423. (6) It is suggested that this cause should be reversed, for the reason "that the verdict in this case is clearly against the weight of the evidence." Counsel for defendant have evidently not yet learned that this court will not reverse a cause because a verdict is against the weight of the evidence. They have said so in so many cases of late years "that it would be but little less than a work of supererogation to refer to authorities upon this subject." State v. Fischer, 124 Mo. 462; State v. Young, 119 Mo. 495; State v. Banks, 118 Mo. 117; State v. Punshon, 124 Mo. 448.
From a judgment of conviction fixing his punishment at a fine of $ 200 and imprisonment in the county jail for sixty days for seducing and debauching one Ada E. Jenkins, an unmarried female under the age of eighteen years, under promise of marriage, defendant appealed. The offense is alleged to have been committed in Carroll county, and the trial and conviction were had in the circuit court of that county.
The prosecuting witness and the defendant both lived in Carroll county about six miles apart. He called at her mother's home with a friend, and became acquainted with her in the spring of 1891, and from that time on until June, 1893, called on her regularly, she testified about once a week -- occasionally taking her to entertainments and frequently to church on Sundays. She also testified that they became engaged to be married about his second visit. That afterward her mother's family, including herself, moved to Bosworth in said county where she and defendant went to school together. That after she moved to Bosworth defendant continued to visit her as before, and in January, 1893, during their engagement to marry, and under promise by defendant to marry her, he seduced and debauched her. That as a result of said seduction a child was born to her October 4, 1893, which died about three weeks thereafter. That defendant visited her after he knew that she was pregnant and also after the indictment was found, and admitted that he had promised to marry her and stated that he intended to do so. That she was under eighteen years of age at the time of the seduction, at which time the evidence showed she was of good repute.
Defendant denied that he ever promised to marry Ada E. Jenkins, but did not deny that he had entertained criminal relations with her. The evidence on his part tended to show that she was over eighteen years of age at the time of the alleged seduction.
I. The first assignment of error is with respect to the action of the court in allowing the prosecuting witness Ada Jenkins to state, over the objections and exceptions of defendant, that on some three or more occasions after the month of January, 1893, when she stated the seduction occurred, defendant stated to her that he would marry her. Some of these statements were made voluntarily by the witness in answer to questions by the prosecuting attorney with regard to what was said by defendant in those conversations -- with respect to promises of marriage made by him to her before the seduction.
The questions were proper, as any admissions or statements made by the defendant at any time tending to show that he had promised to marry her before the offense is alleged to have been committed, were admissible against him; but evidence of any promise of marriage made after that time was clearly inadmissible. The objections, however, were general, the only reason assigned being that the evidence was "incompetent."
It has been repeatedly held by this court that a mere general objection to evidence will be disregarded on appeal. State v. Moore, 117 Mo. 395, 22 S.W. 1086; State v. Smith, 114 Mo. 406, 21 S.W. 827; State v. Harlan, 130 Mo. 381, 32 S.W. 997. Moreover, as the statements of the witness that defendant had promised to marry her, after he had seduced her, were not responsive to any question asked by the state, and merely gratuitous on her part, defendant should have moved to have the evidence stricken out or excluded from the consideration of the jury, and having failed to do so must be considered to have waived any objection thereto.
II. Dr. G. R. Highsmith, a witness for the state, testified that at the request of Ada Jenkins and her mother he made an examination of Ada about the last of April or the first of May for the purpose of ascertaining if she was pregnant, and found that she was. On cross-examination he was asked the following question: "I want to know the reason why they called on you for an examination if they were not ignorant on that point: I don't want what they said: I want the reasons they gave for an examination if they already knew what was the matter?" To this question counsel for the state interposed an objection which was sustained by the court, and defendant duly excepted. This ruling is also assigned as error.
The law is that he who asserts that error has been committed must make it so appear. This is not shown by the question itself, and we can not presume that the trial court erred. As was said in Kraxberger v. Roiter, 91 Mo. 404, 3 S.W. 872: "The questions do not disclose the fact that any answer the witness might make, responsive thereto, would be material evidence in the case, and the purpose for which they were asked is in no way disclosed, except by the questions themselves." See, also, Bank v. Aull, 80 Mo. 199; State ex rel. v. Leland, 82 Mo. 260; Jackson v. Hardin, 83 Mo. 175. This point is untenable.
III. It is also insisted that the court erred in refusing the instruction asked by defendant in the nature of a demurrer to the evidence, because it is contended that the evidence was not sufficient to establish the contract of marriage, or the age of the prosecuting witness at the time of the commission of the alleged offense. By section 3486, Revised Statutes 1889, it is made a felony for any person, under a promise of marriage, to seduce and debauch any unmarried female of good repute, under eighteen years of age. Section...
To continue reading
Request your trial