The State v. Sharp
| Decision Date | 21 January 1896 |
| Citation | 33 S.W. 795,132 Mo. 165 |
| Parties | The State v. Sharp, Appellant |
| Court | Missouri Supreme Court |
Appeal from Dallas Circuit Court. -- Hon. Argus Cox, Judge.
Affirmed.
J. S Haymes, J. W. Miller, and W. G. Robertson for appellant.
(1) The court by the addition to instructions numbers 4 and 5 virtually instructed the jury that although the prosecuting witness had once fallen, but if she had returned to the paths of virtue that would warrant a conviction, which was erroneous because, if the law, there was no evidence to show that prosecutrix had reformed, and hence no evidence on which to predicate such instruction. State v. Primm, 98 Mo. 368; State v. Chambers, 87 Mo. 406; State v Herrell, 97 Mo. 109. (2) The state, over the objection of defendant, was permitted by the court to show that Mrs. Elizabeth Eldridge, mother of prosecutrix, was a widow, which could have no other purpose or object than to prejudice the minds of the jury. Stephens v. Railroad, 96 Mo. 207; Dayharsh v. Railroad, 103 Mo. 570; Mahony v. Railroad, 108 Mo. 191; Williams v. Railroad, 123 Mo. 573. Although the last above authorities declare the law in civil cases, we take it that they are strictly in point in this case, for, if any difference, a man's liberty and character ought to be held more sacred than when only a question of dollars and cents is involved. (3) The court should not have permitted the juror to inquire defendant's object in going to see prosecutrix; it tended to prejudice defendant's rights, and was an improper cross-examination of defendant, which was not brought out by his examination in chief, which was objected to at the time by defendant. State v. Porter, 75 Mo. 171; State v. McGraw, 74 Mo. 573; State v. Turner, 76 Mo. 351; State v. Douglas, 81 Mo. 231; State v. Patterson, 88 Mo. 88.
R. F. Walker, attorney general, and Morton Jourdan, assistant attorney general, for the state.
(1) The defendant asked the court to give instruction number 4, which the court refused to do, but modified and gave the same, which was to the effect that it is the purpose of the statute under which the defendant is indicted to punish those who seduce under promise of marriage, females under the age of eighteen years, who are following the path of rectitude and virtue; and that if the jury find from the evidence that the prosecutrix had had sexual intercourse with any other person than the defendant prior to the alleged seduction, they should acquit him, unless they further found that at the time of the alleged seduction she was following the path of virtue and rectitude; in other words, even though the prosecutrix may at some time before in her life, covering a period of many years, have had sexual intercourse with some person other than the defendant, yet if, at the time of the alleged seduction she had reformed and was then following the path of rectitude and virtue, the defendant could not be excused or justified by reason of her indiscretions in the past; that he could lead astray, debauch, and seduce a female under these circumstances, under our statute, as well as one who had never had intercourse with anyone. State v. Primm, 98 Mo. 373; State v. Thornton, 108 Mo. 640; State v. Patterson, 88 Mo. 93. (2) Instruction number 5 was also modified by the court to the extent of inserting the words "at the time." This instruction told the jury, that although the defendant had intercourse with the prosecutrix under promise of marriage, yet, unless the jury further believed that the prosecutrix was not a person of good repute "at the time," then they should acquit the defendant. This instruction was correct, for the issue was as to her reputation at the time of the alleged seduction, and not what it might have been some years before. In fact, this instruction follows the language of the statute which seeks to punish those who seduce a female under the age of eighteen years, of good repute. Section 3486, R. S. 1889; State v. Thornton, supra; State v. Primm, supra; State v. Patterson, supra. (3) The evidence that the mother of the prosecutrix was a widow was harmless and did not constitute reversible error. (4) While the defendant was being examined one of the jurors asked him what his object was in going to see this girl if it was not for the purpose of marrying her. To this question the defendant objected because immaterial, irrelevant, and "this is the defendant." First, it is suggested that the objection to this question is not sufficient, no proper reason being assigned therefor. The defendant had testified that he had been paying this girl attentions -- almost constantly in her company -- and it was proper for the jury to know what his object was in going to see her. (5) The second instruction for the state correctly defines the term "good repute," and the words "seduce" and "debauched" in language approved by this court in recent cases. State v. Wheeler, 108 Mo. 665; State v. Brandenberger, 118 Mo. 185; State v. Patterson, 88 Mo. 88.
At the April term, 1895, of the circuit court of Dallas county defendant was tried and convicted for having, under promise of marriage, seduced one Elizabeth Eldridge, an unmarried female of good repute under the age of eighteen years. His punishment was fixed at two years' imprisonment in the state penitentiary. From the judgment and sentence he appealed.
The evidence showed that in the latter part of June or first of July, 1893, defendant began keeping company with the prosecuting witness, calling upon her at her home, and accompanying her to and from different places in the county of Dallas where she lived with her mother, on a farm about four miles from Buffalo in said county. She was delivered of a child on the twenty-seventh day of April, 1894, of which defendant was the father. She was then under eighteen years of age. She testified that defendant asked her to marry him in about four weeks after he began waiting on her, and that she promised to do so. That relying on said promise he had carnal connection with her about the first of August, 1893. That no other man had ever had connection with her.
Her mother testified to the attention of defendant to her daughter, her preparation for marriage, etc. That after she discovered that her daughter was in a family way, she sent for the defendant, and asked him what reparation he would make for having ruined her daughter, when he replied that he was willing to do anything she (Elizabeth) said, and that he would marry her if given time.
Defendant testified as a witness in his own behalf, and denied that he had ever promised to marry Elizabeth or that he stated to her mother that he would do so, if given time. He did not deny his attentions to the prosecuting witness, that he had had intercourse with her, or that he was the father of her child.
The evidence as to her character for chastity was conflicting. Three witnesses, Childers, Hendrixon, and Bone testified that they had intercourse with her before the time of her alleged seduction by defendant. This was denied by her. It was also shown by other witnesses that Childers and Bone had said that they knew nothing against her character.
Defendant's first contention is that the court committed error in modifying instructions numbered 4 and 5, and in not giving them as asked. They are as follows:
The words in italics were added by the court.
The statutory offense is: "If any person shall, under or by promise of marriage, seduce and debauch any unmarried female of good repute under eighteen years of age," etc.
"Good repute" is synonymous with and only means of "good reputation." State v. Wheeler, 108 Mo. 658, 18 S.W. 924. Accepting this definition as correct, the words "good repute," as used in the statute quoted, mean of good reputation, and as the good reputation of the prosecutrix is made an element of the offense it devolves upon the state to prove that she was of good repute at the time of the commission of the alleged offense. State v. Hill, 91 Mo. 423, 4 S.W. 121; State v. McCaskey, 104 Mo. 644, 16 S.W. 511. In Zabriskie v. State, 43 N.J.L. 640, which was a criminal prosecution under the statute of that state for having sexual intercourse with a female "of good repute for chastity," the same rule is announced.
Witnesses on behalf of the state who were acquainted with the general reputation for chastity of Elizabeth Eldridge in the neighborhood in which she lived at the time of the alleged seduction testified that it was good. Then when the state showed that she had been seduced by the defendant under promise of marriage, and that she was under the age of eighteen years at the time, it made out a case...
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