The State v. Johnson
| Decision Date | 02 May 1893 |
| Parties | The State v. Johnson, Appellant |
| Court | Missouri Supreme Court |
Appeal from Warren Circuit Court. -- Hon. W. W. Edwards, Judge.
Affirmed.
Peers & Morsey, J. P. Wood and J. S. Laurie for appellant.
(1) The indictment is unintelligible, it does not inform the defendant of the offense with which he is charged. State v. Daugherty, 30 Tex. 360; Jones v. State, 21 Tex.App. 349; Edmonson v. State, 41 Tex. 496; State v. Edwards, 70 Mo. 480; State v Reakey, 62 Mo. 40. (2) The intrusion of the prosecuting attorney upon the grand jury was in violation of the statute. (Revised Statutes, sec. 4077.) Rothschild v. State, 7 Tex.App. 519; People v. Briggs, 60 How. Pr. Rep 17. (3) The court erred in instructing that the fact of the female's unchastity constituted no defense. State v Feasel, 74 Mo. 524; State v. Gibson, 19 S.W. 980; Jenkins v. State, 15 Lea, 674; Scruggs v. State, 90 Tenn. 81; Brown v. State, 72 Md. 468. (4) The definitions of the term "take away" is erroneous. Bishop on Statutory Crimes, sec. 634; Slocum v. People, 90 Ill. 274; People v. Marshall, 59 Cal. 336; State v. Kieth, 47 Minn. 559; People v. Plath, 100 N.Y. 590; State v. Chisenhall, 100 N. C. (5) The court also erred in its definition of concubinage. People v. Plath, 100 N.Y. 590. (6) The instructions are erroneous in failing to tell the jury that if the defendant had good reason to believe and did believe that the female was over eighteen years old when the offense was committed, the defendant could not be convicted. Bickham v. Nacke, 56 Mo. 546; State v. Griffith, 67 Mo. 287; State v. Ellis, 74 Mo. 385; The Queen v. Tolson, 12 Crim. L. Mag. 96. (7) The court erred in its rulings on the evidence. (8) The offense, if any, was not committed in Ralls county; therefore the grand jury of said county had no authority or jurisdiction to find the indictment. (9) The spirit of the statute has not been violated; no family circle has been invaded; no virtuous girl has been led astray; no father's rights have been abused.
R. F. Walker, Attorney General, and Morton Jourdan, Assistant, for the state.
(1) The indictment was sufficient and charged the crime of which defendant was accused in the language of the statute. Revised Statutes, 1889, sec. 3484; State v. Gibson, 111 Mo. 92. (2) The offense was not having sexual intercourse with the prosecutrix, but taking her from her father for the purpose of concubinage. She resided with her father at New London, Ralls county, Missouri, from whose possession and control she was taken. Hence the crime and violation of the statute was committed in Ralls county. Slocum v. People, 90 Ill. 274; State v. Round, 82 Mo. 681; People v. Cook, 61 Cal. 478; State v. Gordon, N. J. Law, 432. (3) The plea in abatement was properly overruled. There was no evidence to support it. The testimony of Whitemore established nothing except the presence of the prosecuting attorney in the grand jury room. He had a perfect right to be there, to counsel and advise the jury in regard to this particular case or any other matter they were called upon to investigate. Revised Statutes, 1889, secs. 4076, 4077. (4) Nor would defendant be permitted to show by the testimony of a grand juror what occurred or was said during their deliberations, for the purpose of impeaching their finding. State v. Grady, 84 Mo. 224; Ream v. Link, 27 Mo. 261. (5) The court properly excluded the testimony as to two alleged previous unchaste acts. Our statute includes all classes, and does not require that the female shall be of previous chaste character. Revised Statutes, 1889, sec. 3484; State v. Feasel, 74 Mo. 524; State v. Gibson, 111 Mo. 92; People v. Carrier, 46 Mich. 442; People v. Demousset, 12 P. (Cal.), 788; People v. Cook, 61 Cal. 478. (6) Defendant, however, waived his exceptions to the admission and rejection of any testimony upon the trial, by failing to preserve the same in his motion for new trial. Revised Statutes, 1889, sec. 4270; Ray v. Thompson, 26 Mo.App. 436; State v. Robinson, 79 Mo. 66; State v. Burnes, 99 Mo. 473: Brownreed v. Ins. Co., 26 Mo.App. 390; Ins. Co. v. Schultz, 30 Mo.App. 96. (7) The instructions, when read and considered together, correctly and clearly declare the law applicable to the case made and presented by the indictment and testimony. State v. Gibson, 111 Mo. 92; State v. Strattman, 100 Mo. 540; State v. Feasel, 74 Mo. 524; People v. Carrier, 46 Mich. 442; People v. Demousset, 12 P. (Cal.), 788; People v. Cook, 61 Cal. 478; State v. Stone, 106 Mo. 1.
At the March term, 1888, of the circuit court of Ralls county, the defendant was indicted for taking away from her father in said county one Rosa Price, a female under the age of eighteen years, for the purpose of concubinage.
A motion to quash the indictment was filed and also a plea in abatement, both of which were overruled. The venue was changed on the application of defendant to the circuit court of Warren county, where a trial was had at an adjourned term of said court on the fourteenth day of December, 1891, and the defendant was found guilty and his punishment assessed at two years' imprisonment in the penitentiary.
The evidence tends to show that Rosa Price, during the years 1886 and 1887, lived with her father, Lewis Price, at New London, Ralls county, Missouri. That she was born in April, 1870, and was under the age of eighteen years at the time of the commission of the alleged offense. That she had been working in a woolen mill but her health began to fail, when she quit that and became a book agent.
In November, 1886, she became acquainted with and sold defendant a book. Defendant was a man of family, which she knew, and at that time proprietor of a drug store at New London. From that time defendant cultivated the prosecuting witness, followed her upon the streets, invited her into his store, told her of his love for her, made her many presents, consisting of jewelry, valentines and money, and in January, 1887, proposed to her that she accompany him on a trip or visit. She accepted his invitation and it was arranged for them to go to St. Louis. In February they took the same train, went over to Hannibal, there changed cars and went to St. Louis.
At St. Louis they stopped at the Bristol hotel, defendant paying all expenses, where they registered as man and wife and occupied the same bed. They returned the next day, she going to Clarksville, Pike county, where she visited several days, he returning home. While at Clarksville she received many letters from defendant, in one of which he said:
He arranged by letter for her to meet him at St. Peters and go to St. Louis again. They spent two nights and days at the same hotel in St. Louis, occupying the same bed, as on the former occasion. A third trip was taken to St. Louis, when defendant arranged another trip, this time to Montreal, Canada, where they lived together as man and wife, having sexual intercourse and going under the assumed name of William Carrington and wife. After three months' residence in Montreal defendant abandoned the prosecuting witness, leaving her a worthless check for $ 30, which was identified as being in his handwriting, and introduced in evidence.
She returned to Ralls county, and upon the trial identified rings, a valentine, a bracelet given her by defendant, and letters written by him to her (many of the letters had been burned by him) were introduced in evidence. The parents and neighbors testified, and the family record of births and deaths showed the age of the prosecuting witness to have been seventeen at the time of the commission of the felony. Defendant's witnesses testified that her reputation for chastity and virtue was bad, while an equal number of her neighbors and friends testified it was good. Defendant established a good reputation for honesty and veracity, but did not go upon the stand. Defendant did attempt to establish by testimony introduced in his behalf that the father had consented to his daughter's infamy and was particeps criminis to her ruin, and that the girl had induced and pursuaded defendant to accompany her.
There was no evidence introduced on the part of defendant tending to contradict the witness Rosa as to the gifts, the writing of the letters, or check, nor as to their arrangements for their several trips to St. Louis, and to Canada, where defendant abandoned her.
After his conviction defendant filed his motion for new trial, and also in arrest, which being overruled the case is here by appeal.
I. The indictment is as follows:
"The grand jurors for the state of Missouri, summoned from the body of Ralls county, empaneled, charged and sworn, upon their oaths present that William H. Johnson, late of the county aforesaid, on the day of , 1887, at the county of Ralls, state aforesaid, did then and there being one Rosa Price, a female under the age of eighteen years, to-wit, seventeen years, unlawfully and feloniously take from one Lewis Price, her father, he the said Lewis Price then and there having in the legal charge of the person of the said Rosa Price without the consent and against the will of the said Lewis Price for the purpose of concubinage, by having illicit sexual intercourse with him, the said William H. Johnson, against the peace and dignity of the state."
This indictment is drawn under section 3484, Revised Statutes, 1889, which is...
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