The State v. Kelley
| Decision Date | 12 December 1905 |
| Citation | 90 S.W. 834,191 Mo. 680 |
| Parties | THE STATE v. JAMES E. KELLEY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Polk Circuit Court. -- Hon. Asbury Burkhead, Judge.
Affirmed.
Rechow & Pufahl and Johnson & Sea for appellant.
(1) An initial is no name. The motion to quash should have been sustained. The information must be presented by the prosecuting attorney, and this means in the name by which he was elected, commissioned and qualified. R.S. 1899, sec 2477; Skelton v. Sackett, 91 Mo. 379; Martin v Barron, 37 Mo. 301; 1 Bishop on Criminal Procedure (1 Ed.), secs. 119 and 120; State v. Martin, 10 Mo 391; State v. Wall, 39 Mo. 534. (2) Defendant's motion to strike out the pretended evidence as to flight should have been sustained.
Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
(1) There is no merit in the contention that the name of the prosecuting attorney should have been written in full in and at the end of the information. The way in which he usually signed his name, "L. Cunningham," was sufficient. State v. Brock, 186 Mo. 457. (2) The letter written by defendant to the prosecutrix was competent evidence. State v. DeWitt, 186 Mo. 71; State v. Sibley, 131 Mo. 528; Bracken v. State, 111 Ala. 68; State v. Bell, 79 Iowa 117; Underhill on Crim. Evid., secs. 528. (3) The State's evidence on the subject of the previous chaste character of the prosecutrix was sufficient. It is the fact of her previous chaste character, and not of her previous good reputation, that the statute requires. R.S. 1899, sec. 1838; State v. Napper, 141 Mo. 404; State v. Hunter, 171 Mo. 440.
On April 28, 1904, the prosecuting attorney of Polk county filed an information in the circuit court, charging defendant with having carnal knowledge of Blanch E. Long, an unmarried female of previous chaste character, between the ages of fourteen and eighteen years. The alleged criminal act occurred on January 15, 1903; the information was duly sworn to by the prosecuting attorney. After a plea of not guilty, defendant filed an affidavit asking for a change of venue on account of prejudice of Hon. Argus Cox. The application was granted, and Hon. Asbury Burkhead, judge of the thirty-first judicial circuit, was called into the case. After the overruling of his motion to quash, and granting him a continuance, defendant was put upon his trial at the October term, 1904, and convicted, his punishment being assessed at two years in the penitentiary.
The prosecuting witness testified that at the time of the commission of the alleged crime she resided with her parents in Polk county, Missouri, a few miles north of Bolivar, in the Hayden school district. The defendant was her school teacher for six months, and often accompanied her along the road; that he lived about a quarter of a mile from her father's. The school usually closed every day at 4 p. m. There was a spring house a short distance from her father's and tolerably close to the public road, the house being surrounded by timber. To this spring she went every afternoon for water, and defendant often met her there about dusk; this was during September, 1902, and January, 1903. At these meetings defendant would hug and kiss prosecutrix, and had sexual intercourse with her several times. Defendant, at the time professing love for her, told her that he would take her away, and they would be happy together. A short time after this school term closed, defendant moved away, and prosecutrix and her parents moved to Bolivar. Defendant visited them at their home, remained over a night or two with them. Defendant told her not to say anything about their relations, or it would send him to the penitentiary. Afterwards defendant moved to Fleming, and corresponded with her. At defendant's suggestion, she used his postoffice box, No. 335, at Bolivar. She received a letter from him once a week, which she answered. In these letters defendant still continued to tell her of his affection for her; these letters were addressed to B. E. K., box 335. A letter written by defendant on January 22, 1904, addressed in that way, was received by prosecutrix, lost by her on her way home from school, found by one of the school girls and given to her mother. Prosecutrix was unmarried and of previous chaste character; defendant had a wife but no children living at this time. Prosecutrix never told of her intimacy with defendant till some time after this letter was found. She had made arrangements with defendant to go on the train with him to Kansas City the next Sunday; but the letter was lost and found on the Thursday before. Defendant had promised that he would get a divorce from his wife and marry prosecutrix; this promise was made at the time of the first act of intercourse. At defendant's request she swore before the grand jury that defendant never had had sexual intercourse with her. At defendant's request she made an affidavit before the probate judge to the same effect. This affidavit was procured at the request of one of defendant's attorneys and signed at a time when neither of the parents of the prosecutrix was at home, and signed in the presence of defendant. When her mother was talking with her a few days later the prosecutrix admitted to her that defendant had had sexual intercourse with her. An affidavit was made before the circuit clerk and this information was filed.
The postmaster at Bolivar testified that box 335 was rented by defendant and used by him while he lived there. Just before defendant left Bolivar, he rented this box for another quarter and paid the box rent. Letters were frequently received at this post-office, directed to B. E. K., box 335, and were put in this box. A letter thus directed and sent was identified by prosecutrix and read in evidence; it is as follows:
Prosecutrix, her mother and a banker in Bolivar testified that this letter was in defendant's hand-writing. Prosecutrix also testified that defendant told her that when he wrote X and O he meant hugs and kisses.
The constable and sheriff testified that when the warrant for the arrest of defendant was placed in their hands they made diligent search for him in and around his home but could not find him. He was finally arrested by the marshal of Weaubleau, in Hickory county.
Defendant took the witness stand and simply denied having had sexual intercourse with prosecutrix. The probate judge testified that he read the affidavit to prosecutrix before she signed it, and told her not to sign it unless it was true. No one was present at the time at her home, except the probate judge, prosecutrix and defendant. There was some evidence that defendant had a good reputation prior to this time; but some of defendant's witnesses on that subject admitted, on cross-examination, that there had been two ugly reports reflecting on defendant's character prior to this trouble.
The instructions and assignments of error will be noted in the body of the opinion.
Numerous grounds for reversal of the judgment have been advanced by the counsel for defendant, both in their brief and in oral argument. These will be considered in the order of their assignment.
I. The information was assailed by a motion to quash for the reason that the prosecuting attorney Lieutellus Cunningham described himself as "L. Cunningham" in the body of the information and signed the same simply by his initial instead of his full name.
Counsel recognize that in State v. Brock, 186 Mo. 457, 85 S.W. 595, this court in the case of an information signed in this same manner by this same prosecuting attorney, held that the signing of an information by a prosecuting attorney by the initials of his given name and as prosecuting attorney was sufficient, but they urge a reconsideration of that decision. On the hearing of the motion to quash it was stipulated that ...
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