The State v. Long
| Decision Date | 19 December 1911 |
| Citation | 141 S.W. 1099,238 Mo. 383 |
| Parties | THE STATE v. OLLIE LONG, Appellant |
| Court | Missouri Supreme Court |
Appeal from Atchison Circuit Court. -- Hon. William C. Ellison Judge.
Reversed and remanded.
John W Stokes and Hunt, Bailey & Hunt for appellant.
(1) The court erred in refusing to give defendant's instruction 6a. The testimony of the prosecutrix, Carrie Miles, stands absolutely uncorroborated as to the promise of marriage. Under our statute, as to the promise of marriage she must be corroborated to the same extent required of the principal witness in perjury. R. S. 1909, sec. 5235; State v Reeves, 97 Mo. 673; State v. Hill, 91 Mo. 425; State v. Fogg, 206 Mo. 714; State v. Brassfield, 81 Mo. 159; State v. McCaskey, 104 Mo. 646; State v. Primm, 98 Mo. 373. Not one act that usually attends the marriage engagement was testified to by either the prosecutrix, Carrie Miles, her father, John Miles, or her mother, Mrs. John Miles. State v. Wheeler, 108 Mo. 655; Armstrong v. People, 70 N.Y. 38; State v. Hill, 91 Mo. 425; State v. Reeves, 97 Mo. 673; State v. Davis, 141 Mo. 525; State v. Mitchell, 229 Mo. 698; State v. Meals, 184 Mo. 254; State v. Falkner, 175 Mo. 581. (2) The court erred in modifying instruction 2, offered by defendant. The modification consisting in changing the copulative conjunction "and" to the disjunctive conjunction "or," in the clause "seduce and debauch," and making it read "seduce or debauch." Imboden v. St. Louis Union Trust Co., 111 Mo.App. 239; State v. Darling, 202 Mo. 165. Had the court given the instruction as asked by defendant it would have properly submitted the case to the jury on the defendant's theory. And it would have been in harmony with the adjudged instructions in cases of this class. The instruction as asked by the defendant should have been given. State v. Meals, 184 Mo. 250; State v. Fogg, 206 Mo. 714; State v. Mitchell, 229 Mo. 696. (3) The court erred in giving instruction 2, on the part of the State, in reference to the corroboration of the testimony of the prosecutrix, as to the promise of marriage. If that instruction does not negative the proper one given on behalf of the defendant on the same issue, it certainly did have the tendency to becloud the issue and confuse the jury. In the instruction given on behalf of the State the court practically told the jury that "Independent evidence was that furnished by the defendant's admissions; defendant's conduct and demeanor toward her; defendant's relation and correspondence with her; defendant's attention to her." Thus virtually shutting out all independent evidence as to the corroboration. And then tells the jury that upon this independent evidence, together with that of Carrie Miles, it is sufficient to overcome the oath of defendant and the legal presumption of his innocence, and that they should find the defendant guilty. This instruction is not the law, and under it any man, be he ever so innocent, could be convicted. It singles out certain specific acts of the defendant and tells the jury these slight, specific acts are sufficient to corroborate the testimony of Carrie Miles, and it virtually tells the jury that the postcards given in evidence were sufficient corroboration. These specific acts should not have been singled out and given to the jury, and for so doing the court committed reversible error. State v. Ballard, 174 Mo. 615; Saxton v. Railroad, 98 Mo.App. 499; Eckhard v. Transit Co., 190 Mo. 620; State v. Hibler, 149 Mo. 486; Gordon v. Burris, 153 Mo. 235; State v. Fogg, 206 Mo. 714. (4) The conviction should not be allowed to stand. The judgment should be reversed and the defendant discharged. State v. Primm, 98 Mo. 372; State v. Dilts, 191 Mo. 675; State v. Francis, 199 Mo. 688; State v. McNamara, 100 Mo. 117; State v. Prendible, 165 Mo. 353; State v. Huff, 161 Mo. 487; Chitty v. Railroad, 148 Mo. 78; State v. Shackleford, 148 Mo. 495.
Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
(1) The conjunctive "and" (Laws 1897, p. 106) may have been changed to the disjunctive "or" improvidently, or inadvertently "crept in by mistake." If this court should so find, it will be the duty of the court to construe the word "or" to mean "and," and in so doing this court will be following precedents. State v. Moody, 202 Mo. 127; Keeney v. McVoy, 206 Mo. 66; Perry v. Strawbridge, 209 Mo. 641. The presumption is that the Legislature never intended to enact an absurd law incapable of being intelligently enforced. State v. Fawcett, 212 Mo. 736, and cases there cited. (2) Appellant says that instruction 2 is not a correct instruction upon corroboration. In this connection it is well to consider section 5235, Revised Statutes 1909, which is as follows: "In trials for seduction under promise of marriage, the evidence of the woman as to such admissions must be corroborated to the same extent required of the principal witness in perjury." State v. Davis, 141 Mo. 525; State v. Wheeler, 108 Mo. 665; 1 Greenleaf on Evidence (14 Ed.), sec. 256, and cases there cited. For a solution of this proposition, it is only necessary to ascertain the construction this court has placed upon this section. A reference to the following cases will do so. State v. Hill, 91 Mo. 423; State v. Eisenhour, 132 Mo. 140; State v. McCaskey, 104 Mo. 644; State v. Sublett, 191 Mo. 163; State v. Fogg, 206 Mo. 696; State v. Walker, 232 Mo. 252. (3) The ninth point of appellant's brief is answered by the verdict of the jury. The jury settled the conflict in the evidence, and this court will not interfere. State v. Tetrick, 199 Mo. 100; State v. Mathews, 202 Mo. 148; State v. Smith, 109 Mo. 706; State v. Williams, 186 Mo. 128.
Defendant was convicted in the Atchison county circuit court under an information charging him with seducing and debauching Carrie Miles under promise of marriage. After unsuccessful motions for new trial and in arrest of judgment, he appealed.
The evidence for the State tended to show that defendant and prosecutrix had been somewhat acquainted for several years and that about two years before the occurrences which gave rise to this prosecution defendant had visited prosecutrix each Sunday for about three months; that these attentions came to an end in October, 1907, when defendant proposed marriage, but was not accepted. On Sunday, August 15, 1909, prosecutrix invited defendant and several young people of the neighborhood to her home, and defendant sought to accompany her to church that evening but failed because prosecutrix had an engagement to attend with another. Defendant was permitted to call the following Sunday however, and accompany prosecutrix to church. On their return defendant proposed marriage, was accepted, and in a very short time (before reaching her home) induced prosecutrix to have intercourse with him. On August 29 defendant again accompanied prosecutrix to church and their illicit intercourse was repeated. Defendant's visits then ceased. Prosecutrix's mother discovered on September 13th that she was pregnant, and on September 16th, defendant was accosted by prosecutrix's father and, according to the latter's testimony, admitted the promise of marriage and agreed to carry it out. There was evidence that prosecutrix was of good repute, unmarried, and under twenty-one years of age at the time of her downfall.
Defendant denied the promise of marriage, the intercourse and the admission testified to by prosecutrix's father. There was much testimony that the reputation of the latter for truth and veracity was bad, and also to the effect that he and prosecutrix at first charged defendant with having accomplished his purpose by force.
There was also evidence tending to show that prosecutrix's testimony on the trial differed in material respects from that given by her at the preliminary hearing, that she was accepting attentions from other young men in the early part of September, 1909, and also that she took the initiative in the matter of the arrangement whereby defendant accompanied her to church August 22, 1909. There was also evidence that defendant's reputation for morality and virtue was good.
Several errors are assigned. In view of the fact that the cause must be remanded for reasons presently to be given, many contentions pressed in the briefs need not be discussed, some of them being unsound, and some being based on rulings not likely to recur on another trial.
I. In 1897 (Laws 1897, p. 106) the section of the Revised Statutes of 1889 (3486) defining seduction under promise of marriage was amended. Prior to that amendment the section provided that any person who should "under or by promise of marriage seduce and debauch any unmarried female of good repute," etc., should be punished as therein prescribed.
The Act of 1897 was entitled "An act to amend section 3486, chapter 47, article 2, of the Revised Statutes of Missouri of 1889, relating to seduction of unmarried females under eighteen years of age," and contained a prefatory section setting forth certain amendments intended to be made and ending with the words: "so that said section, when amended shall read as follows." The amended section, as then set out in full, contains all the amendments mentioned in the prefatory section, and, in addition, contains the word "or" instead of the word "and" between the words "seduce" and "debauch," so that the section as thus set out read, and now reads: "If any person shall, under or by promise of marriage, seduce or debauch any unmarried female of good repute," etc. The trial court instructed on the theory that either seduction or debauchment warranted a conviction.
Counsel contend that the section...
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