The State v. Rorebeck

• Decision Date: 12 November 1900
• Citation: 59 S.W. 67,158 Mo. 130
• Parties: THE STATE v. ELMER ROREBECK, Appellant
• Court: Missouri Supreme Court

59 S.W. 67

158 Mo. 130

THE STATE v. ELMER ROREBECK, Appellant

Supreme Court of Missouri, Second Division

November 12, 1900

Appeal from Atchison Circuit Court. -- Hon. Gallatin Craig, Judge.

Reversed.

C. A Anthony and Hunt & Bailey for appellant.

(1) This offense, if an offense has been committed, was not proven by the State. There is no doubt about a wrong having been committed, but the evidence wholly fails to connect this defendant with that wrong. It is the duty of the court to protect the defendant, and where as in this case, there is an entire absence of evidence tending to prove the gravamen of the offense, the instructions asked should have been given. Hyde v. Railroad, 110 Mo. 272; State v Matthews, 20 Mo. 55; State v. Patrick, 107 Mo 147; State v. Sharp, 106 Mo. 106. (2) The indictment charges but one offense -- that of taking away for the purpose of prostitution. State v. Gibson, 111 Mo. 72, l. c. 98; Corn v. Cook, 12 Met. 93; State v. Ruhl, 8 Iowa, 447. (3) The taking away for mere sensual gratification will not sustain the charge, "taking away for the purpose of prostitution." State v. Gibson, 111 Mo. 92, l. c. 98; State v. Gibson, 108 Mo. l. c. 580; Corn v. Cook, 12 Met. 93; State v. Ruhl, 8 Iowa 447. (4) There must be either an intent or purpose under this indictment to take the girl away for the purposes of prostitution. The evidence of the prosecutrix, if it proves anything, proves that defendant took her for his own gratification -- that is, if we are to believe the prosecutrix. State v. Round, 82 Mo. 679; State v. Gibson, 111 Mo. 92, loc. cit. 95; State v. Johnson, 115 Mo. 410; State v. Wilkinson, 121 Mo. 485; State v. Boblet, 131 Mo. 328; State v. Richardson, 117 Mo. 586; Bishop on Statutory Crimes (1 Ed.) 420, sec. 641; If this law is the rule in concubinage, it is also the rule in prostitution.

Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.

The evidence established the taking away of the prosecuting witness, Grace Ogden, by the defendant, and established the purpose necessary to be shown, and went even farther than necessary in that it showed the accomplishment of that purpose. Every element of the crime was present, as shown by the evidence, and upon no theory could the verdict of the jury be disturbed. The fact that the defendant took the prosecuting witness away from her home and subsequently had sexual intercourse with her, and directed his uncle to have the same relation with her, is evidence that the taking away was for the purpose of prostitution. State v. Johnson, 115 Mo. 480.

GANTT, P. J. Sherwood and Burgess, JJ., concur.

OPINION

GANTT, P. J.

The defendant was indicted, tried and convicted of the statutory crime of having, together with one John Rorebeck, feloniously taken away from her father, against his wishes, his daughter, under the age of eighteen years, for the purpose of prostitution. The offense was charged to have been committed on July 3d, 1897. From that conviction he appeals to this court.

The question in the case is the sufficiency of the evidence to make out a case under section 3484, Revised Statutes 1889 (section 1842, R. S. 1899), which provides that "every person who shall take away any female under the age of eighteen years from her father, mother, guardian, or any other person having the legal charge of her person, either for the purpose of prostitution or concubinage . . . . shall upon conviction be punished by imprisonment in the penitentiary."

This section has often been construed by this court prior to the last revision of our criminal code. Beginning with State v. Gibson, 111 Mo. 92, 19 S.W. 980, it has been uniformly ruled that prostitution in this statute means more than a single illicit act, or series of acts with the same person. It means indiscriminate sexual intercourse with men. [State v. Wilkinson, 121 Mo. 485, 26 S.W. 366.]

We have also ruled that the sexual act is not at all necessary to the commission of the crime, as it may be done by a woman, as well as a man. The gravamen of the offense is the purpose or intent with which the female is taken away from her parent or guardian, or person having legal charge of her person.

The evidence in the case is very meagre. The prosecutrix was the daughter of John Ogden, and about fifteen years old. Her sister was the wife of John Rorebeck, the uncle of this defendant. John Rorebeck lived about eleven miles from Tarkio, Atchison county, Missouri. The prosecutrix had lived with John Rorebeck at different times, and defendant had met her at his uncle's house. On July 3, 1897, the defendant and the prosecutrix were in Tarkio. The 3d of July was celebrated in that city that year as Independence Day instead of the 4th of July.

According to the evidence of the father of the girl, he had told defendant in the forenoon of that day to let prosecutrix alone or "he would shoot the wadding out of him." He admits that up to the time of this threat defendant had not to his knowledge, said anything to prosecutrix, or associated with her during that day. Afterwards he saw defendant treat her to a glass of lemonade on the street. Her mother testified that she told defendant to quit going with her daughter; that she "had enough Rorebecks in her family."

The daughter testified that during the afternoon defendant came up to her on the street and inquired "if she was ready." She asked, "Ready to go where," and he answered, "To her sister's" (Mrs. John Rorebeck's). John Rorebeck does not appear to have been present at any of these conversations. Indeed, he was tried and acquitted of the charge. Prosecutrix consented to go with defendant, and they got in his buggy, and started, but before getting out of town they were caught in a heavy rain, and their clothing thoroughly wet, whereupon they returned to the city, and the prosecutrix...