The State v. Reed
| Decision Date | 14 November 1911 |
| Citation | 140 S.W. 909,237 Mo. 224 |
| Parties | THE STATE v. WALTER S. REED, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. D. E. Blair, Judge.
Affirmed.
George R. Clay and R. H. Davis for appellant.
(1) In departing from the universal course of procedure, the Legislature evidently believed that justice would be best subserved by leaving the question of punishment to the judge as the judge, by reason of his education and experience in the trial of such and kindred cases, would be supposed to be better qualified to assess the punishment than a jury, fresh from their farms, shops and business houses, and without experience in the weighing of testimony in the trial of such cases. (2) The fact that the prosecuting witness was pregnant did not tend in the slightest degree to prove that defendant was guilty of having sexual intercourse with her, and the testimony of Dr. Winchester and the prosecuting witness that she was pregnant was not relevant to any issue on trial, and no doubt influenced the jury in assessing the punishment of defendant.
Elliott W. Major, Attorney-General, and Campbell Cummings, Assistant Attorney-General, for the State.
(1) The assessment of punishment by the jury does not vitiate the verdict if the court adopts it and assesses the punishment as it did in this case. Moreover, under the statute, where the jury finds a verdict of guilty and assesses a punishment not authorized by law, the court shall assess and declare the punishment and render judgment accordingly. State v Hamey, 168 Mo. 197; Sec. 5254, R. S. 1909 (Sec. 2649, R S. 1899); State v. King, 194 Mo. 474; State v. McDonough, 232 Mo. 219. (2) Appellant's ground 4, in his motion for a new trial, "Because the verdict of the jury was unsupported by the testimony," is without merit. The Supreme Court will not interfere with a verdict in a criminal case upon the ground that it is against the evidence, unless there is such a lack of evidence as to indicate that the jury acted from prejudice. State v. Lowe, 93 Mo. 547.
At the January term, 1911, of the circuit court of Jasper county, the appellant was convicted of the offense of having carnal knowledge of an unmarried female of previously chaste character, between fourteen and eighteen years of age. His punishment was assessed at imprisonment in the penitentiary for a term of two years, and he appealed to this court.
At the trial in the circuit court the State introduced evidence tending to show the following facts:
The prosecuting witness, Gertrude Young, who lived with her parents in Rex City, Jasper county, Missouri, was between seventeen and eighteen years of age at the time of the alleged offense. The defendant was about twenty years of age, and he and prosecutrix had known each other all their lives. During the months of August and September, 1910, the defendant and prosecutrix were frequently together and he called at her home two or three times a week. On the evening of August 4, 1910, he accompanied her to the home of her sister and then back to the home of her parents. While returning from the home of the sister they sat down by the roadside and the defendant "insulted" her. She arose and started to go home, but the defendant begged her to remain and continued his solicitations. Upon his promise that he would marry her if she "got in a family way," she yielded and had sexual intercourse with him. She testified that she had never had sexual intercourse prior to that time and had never been married.
The defendant did not testify in his own behalf. Three young men, ranging from seventeen to twenty-two years of age, testified as witnesses for the defendant. Each of the three testified to having had sexual intercourse with prosecutrix prior to August, 1910, and stated the place and circumstances of each sexual act. A large number of witnesses testified that they were acquainted with the reputation of prosecutrix for virtue and chastity in the community in which she resided prior to August, 1910, and that such reputation was bad. These witnesses consisted of both men and women, who lived in the immediate neighborhood of her home. A neighbor woman testified that one evening when prosecutrix and a young man walked by her home the young man had his arm around prosecutrix. A young man testified that prosecutrix once said to him: This incident occurred and this remark was made prior to the time of the alleged commission of the offense.
The State introduced several witnesses in rebuttal to prove the good reputation of the prosecutrix. Some of them testified that they knew her reputation for virtue and chastity prior to the time it became known she was pregnant and that it was good. A majority of them, however, did not state that they knew her reputation, but testified that they lived in the community in which she resided and had never heard her character questioned until it became known that she was pregnant.
I. Appellant complains that the court erred in giving instruction numbered 2, authorizing the jury to assess the punishment in case they should find the defendant guilty. This contention is based upon that part of the carnal knowledge statute which provides that the punishment, between the limits prescribed, shall be assessed "in the discretion of the court."
The facts of this case, as to the point under review, are not materially different from the facts in the case of State v. Hamey, 168 Mo. 167, 67 S.W. 620. That case was decided by the Court in Banc, having been transferred there from this division because of a dissenting opinion. It involved both the constitutionality of the statute under consideration, and the action of the trial court in giving to the jury an instruction authorizing them to assess the punishment in case of a conviction. The court sustained the statute and held that the trial court did not err in giving the instruction complained of. That case is decisive against appellant's contention and no reason appears why the question should be now reopened.
II. Dr. Winchester was introduced as a witness for the State and, over defendant's objection, was permitted to testify that he made an examination of the prosecutrix and that she was in a pregnant condition. The action of the court in overruling the defendant's objection to this testimony is assigned as error. The ground of the objection is that the testimony "is not competent to prove that this defendant committed the act charged." In the case of State v. Palmberg, 199 Mo. 233, 97 S.W. 566, this court held it competent, in a prosecution under the carnal knowledge statute, for the prosecuting witness to testify that she became pregnant and gave birth to a child as the result of the intercourse with the defendant. If the prosecuting witness may thus testify to her pregnancy, it was not error for a physician, who had made an examination, to testify to the same fact.
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