The State v. Napper
| Decision Date | 16 November 1897 |
| Citation | 42 S.W. 957,141 Mo. 401 |
| Parties | The State v. Napper, Appellant |
| Court | Missouri Supreme Court |
Appeal from Dunklin Circuit Court. -- Hon. John G. Wear, Judge.
Affirmed.
J. P Tribble and W. S. C. Walker for appellant.
(1) The statute fully defines the offense and the indictment should follow the statute. State v. McDaniel, 94 Mo. 301; State v. Kirby, 115 Mo. 440. (2) The court erred in permitting counsel for the State to propound to the witness Virginia Richardson, leading questions, as follows: -- "I will ask you if, while you were at his place, you were not under his care and protection?" A. "Yes sir; he was my protector, as I thought." Q. "I will ask you if he said to you that if you would go with him and live with him he would be a father to you?" A. "Yes, sir; he said that he would be a father to me." McLean v. Thorp, 3 Mo. 215; 1 Greenl. on Ev. [Redfield's Ed.], secs. 434, 434a. (3) The Bible introduced in evidence to prove the age of Virginia Richardson was improperly admitted; it was proven that the entries therein made were made years after the birth of Virginia Richardson and that the book itself was only a copy from another Bible; and that only a part of the entries were made by the father of Virginia Richardson. (4) When she went to Dr. Hughes the relation theretofore existing, if it did exist, was broken. State v. Parker, 106 Mo. 217. (5) Instruction number 6, given at the instance of the State, was erroneous, in this, that, first, it comments on the weight of the evidence; second, it singles out the testimony of the defendant and his wife and charges the jury -- not as to their credibility alone -- but both as to their credibility and the weight to be given their testimony. It fails to tell the jury that the defendant and his wife are competent witnesses. State v. Cook, 84 Mo. 40; State v. Fairlamb, 121 Mo. 137; State v. Swain, 68 Mo. 605; State v. Irwin, 80 Mo. 249. (6) The jury must have been actuated by passion or prejudice to convict upon such testimony. State v. Sibley, 131 Mo. 519.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
(1) Leading questions are not subject to review by this court for that reason alone. Such matters rest in the sound discretion of the trial court. (2) Where an inference of guilt can reasonably be drawn from the evidence, the court will not undertake to invade the province of the jury by passing on the weight or sufficiency of the testimony. (3) The evidence was sufficient, if believed, to establish the fact that Virginia Richardson was at the time of the offense confided to the care and custody of defendant. Defendant's own evidence is sufficiently strong on this point. State v. Strattman, 100 Mo. 550; State v. Buster, 90 Mo. 517; State v. Lingle, 128 Mo. 540. (4) The trial court committed no error in "not giving an instruction to the jury defining the meaning of the word 'felonious' as used in the instructions." State v. Scott, 109 Mo. 226; State v. Hayes, 105 Mo. 76; State v. Jackson, 99 Mo. 63; R. S. 1889, sec. 4115.
Division Two: Burgess, J. Gantt, P.J., concurs. Sherwood, J., is of the opinion that the prosecuting witness, Virginia Richardson, was not confided to the care and protection of defendant within the meaning of the statute. In Banc: Barclay, C. J., and Gantt, Macfarlane, Burgess, Robinson and Brace, JJ., concurring, and Sherwood, J., dissenting.
At the July term, 1895, of the circuit court of Dunklin county, the defendant was indicted by the grand jury of that county, and charged with defiling, debauching, and carnally knowing one Virginia Richardson, a female under the age of eighteen years, who was alleged to have been confided to his care and protection. At the March term of said court next following, he was put upon his trial, found guilty as charged, and his punishment fixed at nine months' imprisonment in the county jail and a fine of $ 500. Defendant then filed his motion for a new trial, which being overruled, he saved his exceptions and brings the case to this court by appeal for review.
It appears from the record that Virginia Richardson was an orphan child in the care of her uncle, who gave her to the wife of William Napper, a son of the defendant, to raise, and that she within two or three years thereafter gave her to his mother, the wife of defendant.
When she was taken to defendant's house she was ten years of age. She testified that when she first went to defendant's that he took her from his son's house to his in a buggy, and while on the way he told her that he would be a father to her, and that she was to be as his own child, and to be one of the family. That during all the time she lived there she was under the control and protection of defendant and his wife. That in 1892 defendant and his wife broke up housekeeping when, by their directions, she went to live with a Dr. Hughes, their son-in-law, where she remained until January, 1893, when defendant and his wife were again housekeeping, and at their request she again returned to their house and continued to make that her home until June, 1895, when she left there, and that she was delivered of a child on the nineteenth day of August, 1895, of which defendant was the father. That shortly after her return from Dr. Hughes's to defendant's, he began having criminal connection with her, which continued until January, 1895. That she was born on the twenty-ninth day of July, 1878, and that no person other than the defendant had ever had criminal connection with her.
Defendant was born in November, 1825. He and his wife both testified that he had been impotent for six years next preceding the time of the trial, and he and two other witnesses, physicians, testified that during the last three years, both before and after his arrest, he had been treated by them for impotency. Both defendant and his wife testified that Virginia Richardson was never under the care and control of defendant, but was always under the care and control of defendant's wife. He denied that he took Virginia to his house when she first went there to live, or that he ever stated to her that he would be a father to her, that she should be as his own child, or that he ever at any time had carnal connection with her. He proved a good character for morality.
1. The contention is made that the indictment is bad because it charges the act of defilement to have taken place while Virginia Richardson "remained in the care and protection, custody and employment" of defendant, while the statute does not use the word protection in that connection. The language used in the statute is "while she remains in his care, custody or employment." R. S. 1889, sec. 3487. The word protection, as used in the indictment, is at most but surplusage, and may be disregarded. It does not in any way affect the validity of the indictment.
2. There was no reversible error committed in permitting counsel for the State to propound to its witnesses leading questions. This was a matter resting largely in the discretion of the court, and this court will not reverse a judgment upon that ground, unless it be made to appear that the discretion was abused, which is not the case in this instance.
3. The contention is also made that there was no evidence upon...
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