The State v. Eubanks

• Decision Date: 20 November 1906
• Citation: 97 S.W. 876,199 Mo. 122
• Parties: THE STATE v. EUBANKS, Appellant
• Court: Missouri Supreme Court

97 S.W. 876

199 Mo. 122

THE STATE v. EUBANKS, Appellant

Supreme Court of Missouri, Division Two

November 20, 1906

Appeal from Taney Circuit Court. -- Hon. John T. Moore, Judge.

Affirmed.

Burkhead & Clarke for appellant.

The information is based upon section 1838, Revised Statutes 1899, which appellant claims is out of line with the trend and spirit of the laws of Missouri, and unconstitutional. Secs. 22, 28 and 30, art. 2, Constitution; Smart v Kimball, 43 Mich. 448; State v. Hamey, 168 Mo. 218.

Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.

Defendant's assignment of error that the carnal knowledge statute section 1838, is unconstitutional has been decided adversely to his contention. State v. Hamey, 168 Mo. 167.

GANTT J. Burgess, P. J., and Fox, J., concur.

OPINION

GANTT, J.

On the 17th of March, 1905, the prosecuting attorney of Taney county filed an information with the clerk of the circuit court of that county, charging the defendant with carnally knowing one Callie Lewis, an unmarried female of previously chaste character, between the ages of fourteen and eighteen years. Accompanying said information there was filed an affidavit of Callie Lewis, which charged defendant with the same offense. At the October term, 1905, defendant was tried and convicted; whereupon, the court assessed his punishment at two years in the penitentiary. After his motion for a new trial and in arrest of judgment had been overruled, defendant was granted an appeal. The trial court made an order giving defendant leave to file his bill of exceptions within ninety days from October 27, 1905. Afterwards, the defendant filed an order extending the time thirty days for filing same, said order having been dated and signed by the trial judge on the 25th of January, 1906, which was within the time. Within the thirty days the bill of exceptions was signed by the trial judge and filed with the clerk.

The State's evidence tended to prove that prosecutrix lived with her mother in Taney county, near Walnut Shade. On January 29, 1904, the father of prosecutrix died, and defendant, who had begun to keep company with her a little while before, kept up his visits regularly thereafter. About the first of March, 1904, defendant and prosecutrix had sexual intercourse, which was continued at intervals till in June, when it was discovered that she was pregnant. In July prosecutrix went to Kansas City to visit a sister of defendant. From Kansas City she went out in to Kansas to visit her relatives, and did not return to Taney county till the following February. Defendant followed prosecutrix to Kansas City, remaining there for some time after she had left the city. While in Kansas City defendant wrote the following letter to prosecutrix, which was identified and read in evidence:

"Kansas City, Mo., Aug. 19, 1904.

"Miss Callie Lewis:

"My Dear Sweetheart -- I now take the pleasure of answering your most kind and highly appreciated letter that I received yesterday evening. Was truely glad to hear from you once more. Well, Callie, I have been very sick since you left; you left Saturday night and I took sick Sunday night, and have been sick ever since, but feel better now. I had three doctors with me. The folks all got scared and thought I was going to die the other night.

"Well, Callie, you spoke about me writing to Stella Moore; the other evening when I was sick Clara began to laugh and told me that that letter that I rote Stella Moore was still laying in the shelf, so I told her it could just lay there and rot, and she said that was right, and I think so to.

"Well, Callie, was sorry to hear that your medicine hadn't did you any good yet, but don't get discouraged, for I no it will if you just take it good, and, of course, you will.

"Tell Jane and Ed hello and kiss Ross for me and don't forget to kiss Callie for me.

"Have you told the folks about it yet, and how did they take it? Have you saw Fannie and Allen yet and are they married; if they are married how many babies have they? Clara said tell you to rite to her and tell her how you are getting along. Well, as news is scarce I will ring off, so good by as ever yours.

"Sincerely,

"Quinnie Eubanks.

"Direct your letter to the house, for I don't know whether I will work any more on the car or not as the Doc't told me that was what made me sick."

At the time of having these improper relations, prosecutrix was fifteen years old, and defendant was nineteen. The mother of prosecutrix testified to her age, and also to the fact that no other young men or boys had kept company with prosecutrix. She also testified that, just prior to the time of filing the complaint in this case, the defendant and a friend of his tried to settle the case for forty dollars. The mother further testified that on March 12, 1905, prosecutrix gave birth to a child, which was born dead, and that it was a nine months child. Judge Craig, A. L. Weatherman and Mrs. George Patterson all testified that they were neighbors, and had been acquainted with prosecutrix most of her life; and that her general reputation for chastity was good prior to this trouble. And prosecutrix testified positively that no one, except defendant, had ever had intercourse with her.

The defendant admitted associating with prosecutrix, and also...