The State v. Sibley

• Citation: 33 S.W. 167,131 Mo. 519
• Parties: The State v. Sibley, Appellant
• Decision Date: 10 December 1895
• Court: United States State Supreme Court of Missouri

33 S.W. 167

131 Mo. 519

The State v. Sibley, Appellant

Supreme Court of Missouri

December 10, 1895

Appeal from Mississippi Circuit Court. -- Hon. Henry C. Riley Judge.

Reversed and remanded.

George S. Elliott and William Hunter for appellant.

(1) The letters written to Lula Hawkins in St. Louis by her mother in answer to letters from her daughter were clearly incompetent though they were penned by defendant at the dictation of Mrs Sibley. The same may be said of the letters written to Mrs. Laura Hobbs, of St. Louis, by Mrs. Sibley, the mother of Lula Hawkins; neither Mrs. Sibley nor Mrs. Hobbs have any connection with this case. State v. Minton, 116 Mo. 605; Commission Co. v. Express Co., 53 Mo.App. 284; Goltz v. Griswold, 113 Mo. 114; State v. Ulrich, 110 Mo. 359. (2) The court erred in admitting in testimony one letter written by Mrs. Sibley to her daughter, in Mrs. Sibley's own handwriting, the defendant not knowing anything about the letter or its contents. This letter was introduced by the state as original evidence, and not in rebuttal. Chouteau v. Searcy, 8 Mo. 733; Frederick v. Allgaier, 88 Mo. 598; State v. Minton, 116 Mo. 605. (3) The circuit court erred in admitting the testimony of T. C. Cooksey. The testimony was not only incompetent as being a declaration of a person not rational at the time, but is hearsay, and is not part of the res gestae. The effect of such incompetent and illegal testimony was to prejudice the jury. Butler's Nisi Prius [Ed. of 1788], p. 293, says: "As to those who are excluded from testifying for want of skill and discernment, they are idiots, madmen, and children." Same authority, page 294, says: "The third general rule is, that hearsay is no evidence." 2 Trials Per Pais [Ed. 1766], 389; Blackstone, B. 3, p. 368. Blackstone says: "All witnesses of whatever region or country, that have the use of their reason, are to be received and examined," except, etc. B. 3, p. 369. (4) The court erred in admitting testimony of defendant's general reputation for chastity on part of state. Defendant had not introduced any testimony as to his general reputation; and chastity of defendant was an issue in the trial, and should not be established by general reputation. (5) The court erred in rejecting testimony of illicit intercourse between Lula Hawkins and young men. It was admissible to disprove and contradict her testimony that defendant was father of the child, and also affected credibility of witness.

R. F. Walker, attorney general, Morton Jourdan, assistant attorney general, and J. J. Russell for the state.

(1) An indictment setting forth what is necessary to constitute an offense as defined by the statute, is sufficient. State v. Anderson, 81 Mo. 78; State v. Madden, 81 Mo. 421. (2) The instructions given by the court are complained of for the first time in the motion for a new trial; this is too late. State v. Cantlin, 118 Mo. 111. (3) The trial court did not err in permitting witness Cooksey to testify as to the declarations and actions of the prosecutrix. State v. Moxley, 102 Mo. 384. (4) The letters introduced in evidence were properly admissible. (5) The character and reputation of a male witness may be impeached by reason of his immorality and unchastity. State v. Shields, 13 Mo. 236; State v. Breeden, 58 Mo. 507; State v. Clinton, 67 Mo. 391; State v. Rider, 90 Mo. 63; State v. Shroyer, 104 Mo. 446; State v. Raven, 115 Mo. 423; Ward v. State, 28 Ala. 53; Ratterel v. Chapman, 79 Ga. 574; Rawles v. State, 56 Ind. 433; Painter v. People, 147 Ill. 459; Thurman v. Virgin, 18 B. Monroe, 785; Uhl v. Com., 6 Gratt. 706. (6) The defendant had the care and custody of the prosecutrix, within the meaning of the statute. Gorman v. State, 42 Tex. 221; Academy v. Bobb, 52 Mo. 360; Otte v. Becton, 55 Mo. 101.

Burgess, J. Barclay, J., concurs in the result. Sherwood, J., dissents from the first paragraph, and concurs in all others. Robinson, J., concurs.

OPINION

In Banc.

Burgess J.

From a conviction and sentence to imprisonment in the penitentiary for a term of two years for defiling, debauching, and carnally knowing one Lula Hawkins, a female under the age of eighteen years, who was charged to have been confided to his care and protection, defendant appealed.

Lula is the daughter of defendant's wife, Roxie, by a former husband, and at the time of her mother's marriage with defendant was about nine years of age. From that time on defendant clothed her and sent her to school, until she was twelve or thirteen years old, when she refused to go. She, however, continued to live with defendant as a member of his family, assisting her mother in her domestic affairs, until she left home in May, 1890, and went to St. Louis, Missouri, where she has resided ever since. She had a small estate, and in 1890 one Tinkhoff was appointed her guardian, and after that time until her estate was exhausted he clothed her. There was nothing tending to show that Lula had ever been confided to the care and protection of defendant, other than what has been stated.

She testified that when she was between twelve and thirteen years of age, and about the first of July, 1887, in the house and in the forenoon of that day, during the absence of her mother from home, defendant had criminal connection with her by force and against her will. That only one member of the family was at home at the time, except defendant and herself, a little boy who was outdoors. That he had put his arms around her and made indecent proposals to her on a former occasion. That after her mother returned home on the day that defendant first had connection with her, she told her of the occurrence, who a short time afterward, told her that she would have to submit to defendant's wishes or leave home; that after that time defendant had criminal connection with her on different occasions, for as many as thirty-five to forty times, always in the same room where her mother slept, she having knowledge of what was going on, at all times. That he would leave her mother's bed and come to hers, and force her by threats and abusive language to submit to his desires, and that this continued up to within two or three days of the time of her leaving home. That from this intercourse with defendant she became pregnant, and in about eight months thereafter, in the city of St. Louis, where she had gone to be confined, defendant furnishing the money to pay her expenses to that place, she was delivered of a stillborn child of which defendant was the father. That during her pregnancy defendant gave her medicine to produce an abortion. That defendant and her mother were both well aware of her condition before she left home, and her object and purpose in so doing. That she never told any person except her mother of defendant's mistreatment of her, although she had a brother older than herself, a grandmother, and sister.

The mother of Lula, and wife of defendant, testified as a witness for defendant, and denied all knowledge of any improper relations between Lula and him. She stated that Lula was a wayward girl and ungovernable; that after she found out that she was pregnant, she endeavored on different occasions before she left home to get her to tell who was the cause of her trouble, but she would give her no satisfaction about it. She also denied that Lula had ever told her of any mistreatment or improper conduct by defendant toward her.

Defendant testified as a witness in his own behalf, and denied ever having any improper relations with Lula, that he had any care of, or control over, her, or that he was the father of her child.

The evidence as to defendant's character for morality and chastity, truth and veracity, was conflicting. He had been twice elected justice of the peace, and had at one time been a member of the county court of Scott county.

The indictment was preferred in Scott county, and on application of defendant the venue was changed to Mississippi county where the trial was had.

1. The first question for consideration is, as to whether Lula Hawkins was ever, under the evidence, confided to the care or protection of defendant, within the meaning of section 3487, Revised Statutes, 1889. That section reads as follows: "If any guardian of any female under the age of eighteen years, or any other person to whose care or protection any such female shall have been confided, shall defile her, by carnally knowing her, while she remains in his care, custody, or employment, he shall, in cases not otherwise provided for, be punished by imprisonment," etc.

If the statute means that the confiding contemplated by it must be by some express contract or agreement, then Lula Hawkins was never confided to the care or custody of the defendant. But if such confiding may be inferred from the facts and circumstances in evidence, which we think may be done, then the evidence in this case showed a confiding within the meaning of the statute quoted. It was shown that at the time defendant married the mother of Lula she was but nine years of age, and that from that time on he assumed control over her, clothed and provided for her, sent her to school as long as she would go, and that she continued to be a member of his family until some time after the offense is alleged to have been committed.

While we concede that criminal statutes can not be so construed as to embrace offenses not clearly within their provisions "yet the intention of the legislature must govern in the construction of penal, as well as other statutes, and they are not to be construed so strictly as to defeat the obvious intention of the legislature." United States v. Wiltberger, 18 U.S. 76, 5 Wheat. 76, 5 L.Ed. 37. The statute was intended as much for the protection of females under the age...