The State v. Kyle
| Decision Date | 23 June 1914 |
| Parties | THE STATE v. WILLIAM KYLE, Appellant |
| Court | Missouri Supreme Court |
Appeal from Pemiscot Circuit Court. -- Hon. Frank Kelly, Judge.
Reversed and remanded.
Ward & Collins and Shepard, Reeves & McKay for appellant.
(1) Instruction number 2, given by the court on behalf of the State is error, and does not properly declare the law. This instruction tells the jury in effect at least that if the prosecutrix lived with the appellant and his family as one of his family (which is a comment on the evidence) regardless of her relation in kinship or otherwise, or appellant's acts or control over her or whether her conduct was amenable to her mother or her own looking after and regardless of her minding or listening to any advice of appellant, still this instruction advises the jury that appellant is her confidee notwithstanding the evidence to the contrary that she was barely on speaking terms much less mindable terms to him. And this instruction is so remote from legal reason or any to be found in the books we deem it unnecessary to cite authorities as to how it could have or why it did very materially affect the rights of the appellant. (2) Instruction number 5, does not properly declare the law in this case, and is error. (3) Instruction number 6, is clearly erroneous and should not have been given by the court on behalf of the State. This instruction takes from the jury the question of the condition of the private organs of the prosecutrix before the time it is alleged that the appellant had sexual intercourse with her, or attempted to do so. (4) Appellant's instruction "B" properly declared the law and should have been given. The above instruction simply requires the jury to find from the evidence one of the necessary elements of the offense charged in the information, that is, that the prosecuting witness, Edna Cole, was actually confided to the care, control or protection of appellant, and such is a necessary fact for the State to prove against appellant and should have been submitted to the jury as a fact for it to find. As said by Judge Kelly in his criminal work, to constitute this offense, one of the necessary elements of the offense is that the prosecutrix was confided to the care of defendant and that he defiled her by carnally knowing her while she was so confided to his care and protection. Kelly's Criminal Law, sec. 556; State v. Buster, 90 Mo. 514; State v. Strattman, 100 Mo. 540. (5) The newly discovered evidence set forth by affidavit and otherwise in appellant's motion for a new trial, clearly entitled appellant to a new trial, and its refusal by the court was error.
John T Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
(1) Of the relation existing between prosecutrix and her stepfather the defendant. State v. Woolaver, 77 Mo. 104; State v. Sibley, 131 Mo. 524; State v Napper, 141 Mo. 406; State v. Summar, 143 Mo. 232; State v. Hesterly, 182 Mo. 25; State v. Oakes, 202 Mo. 102; State v. Nibarger, 255 Mo. 289. (2) The unchastity of the female is not a defense. State v. Summar, 143 Mo. 224; State v. Sibley, 131 Mo. 524; State v. Strattman, 100 Mo. 551; State v. McClaine, 138 Mo. 314; State v. Nibarger, 255 Mo. 289. (3) Given instruction number 2 told the jury that if prosecutrix was living with defendant as a member of his family, then, and in that event, there was a confiding and she was in his care, etc., within the meaning of the statute. State v. Woolaver, 77 Mo. 104; State v. Sibley, 131 Mo. 524; State v. Napper, 141 Mo. 406; State v. Nibarger, 255 Mo. 289. Instruction number 3 given, was on the credibility and weight to be given to the witnesses and their testimony and is a stereotyped instruction that has been given in almost every criminal or civil case. On this we need not burden this brief with citations. Instruction number 5 concerned the testimony of defendant and his wife and is in the form approved by this court in State v. Shaffer, 253 Mo. 320. Instruction number 6 told the jury that the unchastity of prosecutrix could not be interposed by appellant as a defense, but should be considered by the jury as affecting her credibility as a witness, and was correctly given. State v. Summar, 143 Mo. 230; State v. Sibley, 131 Mo. 532; State v. Rogers, 108 Mo. 532; State v. Strattman, 100 Mo. 551; State v. Nibarger, 255 Mo. 289. The bad character of the prosecutrix may be shown for the purpose of affecting her credibility. State v. Wilson, 99 Mo. 284; State v. Terry, 106 Mo. 209; State v. Summar, 143 Mo. 230; State v. Sibley, 131 Mo. 532; State v. Nibarger, 255 Mo. 289. Instruction No. 2, asked by defendant and refused by the court, was to the effect that although the prosecutrix continued to live with her mother and stepfather after their marriage that was not sufficient to show that prosecutrix was under the care, etc., of defendant; that he must have actually assumed and exercised control over her. There was no error in refusing to give this instruction. State v. Woolaver, 77 Mo. 104; State v. Sibley, 131 Mo. 524; State v. Summar, 143 Mo. 232; State v. Napper, 141 Mo. 406; State v. Hesterly, 182 Mo. 25; State v. Oakes, 202 Mo. 102; State v. Nibarger, 255 Mo. 289. (4) Vigilant counsel for appellant did not request the court to rebuke the prosecuting attorney for his remarks. The court declined in the presence of the jury to issue the warrant, and did all counsel for appellant requested. There is no exception saved to the action or nonaction of the court. State v. Green, 229 Mo. 655; State v. Raferty, 252 Mo. 73; State v. Wana, 245 Mo. 563. (5) All of the alleged newly discovered evidence is of an impeaching character, cumulative and of a character not likely to have produced a different result had it been introduced and measured by the rule required in granting a new trial because of newly discovered evidence; the application falls short of meeting these requirements. State v. Miller, 144 Mo. 30; State v. Cushenberry, 157 Mo. 183; State v. McKenzie, 177 Mo. 699; State v. Speritus, 191 Mo. 24; State v. Church, 199 Mo. 605; State v. Estes, 209 Mo. 288; State v. Whitsett, 232 Mo. 523; State v. Walker, 250 Mo. 321; State v. Sebastian, 215 Mo. 87. The granting of a new trial upon the ground of newly discovered evidence is in the sound discretion of the court. Insurance Co. v. Curran, 45 Mo. 142. Absent an abuse of discretion, this court will not interfere. Cook v. Railroad, 56 Mo. 380; Schmitt v. Railroad, 160 Mo. 43; State v. Walker, 250 Mo. 322.
Defendant was convicted of defiling his stepdaughter, Edna Cole, and sentenced to two years in the penitentiary. He was fifty years old at the time of the trial. He went to Caruthersville in December, 1911, and began boarding with Mrs. Cole, who had been divorced from her second husband, by whom she had three children, Edna, aged fourteen, Olga, aged nine or ten, and Chester, aged eight years. She had a son, Kim Wynn, by a former husband. Kim was married and lived near his mother, who, with his help, had bought a home, a house of four rooms. Prior to her marriage to defendant, she did washing for an income. On March 9, 1912, the defendant and Mrs. Cole were married and continued to live in her house. He and his wife slept in one room, and the three children in the adjoining room. There was a door between. Mr. Smith, a brother of Mrs. Kyle, slept in the same room with the children two nights in a week for three or four weeks sometime between the marriage of defendant and the 15th of May, on which latter date Edna complained to her half brother, Kim Wynn, of defendant's mistreatment of her. Wynn and his wife caused Edna to be examined by Dr. Hudgins on May 16, 1912. He found her genital organs swollen and inflamed and the hymen broken, indicating according to his opinion that she had been carnally known within the past month.
Defendant and his wife both testified that defendant did not in any way attempt to control Edna. He testified that she lived there as one of his family. Nellie Wynn, the wife of Kim Wynn, testified that defendant "bossed" Edna and the other children.
Edna testified that about two weeks after defendant's marriage, he came into her room in the night and had intercourse with her; that she threatened to tell her mamma, and he said he didn't care if she did; that she then threatened to tell the marshal, and that he said if she did he would kill her; that he continued to have intercourse with her, in all about a dozen times, once when her grandma Sparks was sleeping in the same room. Defendant testified denying the charge.
Bill Jones testified for the defendant that he was nineteen years of age and had lived close to the home of Mrs. Cole and Edna; that about four months before defendant's marriage the witness had sexual intercourse with Edna in a corn crib, when she had come for corn shucks as he was shucking corn. Thereupon the following occurred:
The next day Judge Gossom for the State recalled the witness Jones and the following occurred: ...
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