The State v. Summar

• Decision Date: 15 March 1898
• Parties: The State v. Summar, Appellant
• Court: Missouri Supreme Court

45 S.W. 254

143 Mo. 220

The State v. Summar, Appellant

Supreme Court of Missouri, Second Division

March 15, 1898

Appeal from Polk Circuit Court. -- Hon. James T. Neville, Judge.

Affirmed.

Rechow & Pufahl for appellant.

(1) The indictment is vague and indefinite. It does not charge that the offense was committed in Polk county. It does not allege the sexual act to have been felonious. (2) The judge who tried the case had no jurisdiction for the reason that there was no opportunity given the defendant and the prosecuting attorney to agree upon some attorney present to try the case or to elect one. State v. Gilmore, 110 Mo. 3; State v. Higgerson, 110 Mo. 214; State v Newsman, 129 Mo. 155; State ex rel. v. Wear, 129 Mo. 620; State v. Silva, 130 Mo. 443; Acts 1895 p. 164, sec. 4178. There must be an election and refusal to serve before the court can call in a judge of another circuit. Acts 1895, p. 164, sec. 4178. (3) The defendant's instruction in the nature of a demurrer to the evidence, at the conclusion of the evidence, should have been given. State v. Arnold, 55 Mo. 90; State v Young, 99 Mo. 288. (4) Instruction number 9 given by the court is not the law, and has been repeatedly condemned by this court. State v. Austin, 113 Mo. 543; State v. Hobbs, 117 Mo. 621. (5) The defendant should have been permitted to prove the general bad character of the prosecutrix for virtue and chastity at the time of the alleged offense, to effect her credibility as a witness. State v. Shields, 13 Mo. 236; State v. Breeden, 58 Mo. 507; State v. Miller, 71 Mo. 590; State v. Grant, 79 Mo. 133; State v. Shroyer, 104 Mo. 447; State v. Raven, 115 Mo. 422; State v. Sibley, 131 Mo. 531; State v. Clawson, 30 Mo.App. 143; Davis v. Commonwealth, 23 S.W. 586; Brown v. Perez, 34 S.W. 725. (6) The remarks of the attorney in his closing argument were, under the circumstances, highly prejudicial. State v. Jackson, 95 Mo. 652; State v. Young, 99 Mo. 682; State v. Ulrich, 110 Mo. 365; State v. Fisher, 124 Mo. 464; State v. Bobbst, 131 Mo. 338.

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

(1) The indictment in this case is sufficient. It correctly lays the venue and charges the offense in the language of the statute creating it. (2) The record shows that the attorney for the State would not agree upon one of the attorneys at the bar to try the case. It was his prerogative, regardless of the opinion of the court or of the defendant. The entry of record by the court that there were attorneys present in court who were qualified to try the case goes for naught as against the desire or opinion of the attorney for the State. Acts 1895, p. 164. Moreover, the objection should have been renewed before Judge Neville at the time he took charge of the case. (3) Instruction number 9 is not subject to the criticisms in the cases cited by appellant in his brief. In fact, the objections there found are carefully and clearly avoided. "You are not to reject his testimony, if believed to be true, simply because he is the defendant." These words, instead of being prejudicial to defendant, are favorable to him and tend to destroy the common law rule and general belief that the defendant is not a competent witness in his own behalf on account of the inducement offered to falsify. (4) No error was committed in refusing to permit defendant to introduce evidence as to the bad character of the prosecuting witness at the time of the alleged offense. The question as to whether she was chaste or unchaste at the time of the offense is of no moment in this case as affecting defendant. The only object for which such testimony could be used would be to discredit or break down her testimony. The court, therefore, did right in restricting the evidence to the general reputation of the girl at the time she testified in the case. State v. Duffey, 128 Mo. 558; State v. Houx, 109 Mo. 656. (5) The evidence in this case is of sufficient strength to warrant the jury in finding that the girl was "confided" to the care and custody of defendant, as contemplated by the statute. State v. Napper, 141 Mo. 401.

Gantt, P. J. Sherwood and Burgess, JJ., concur; Burgess, J., holding that evidence of unchastity was not admissible at all to impeach the credibility of the prosecutrix.

OPINION

Gantt, P. J.

The defendant was indicted at the April term, 1895, for defiling and carnally knowing Lucy M. Davis, a female under the age of eighteen years who had been confided to his care or protection while she remained in his care and custody, and was tried and convicted and sentenced to imprisonment in the penitentiary for two years. He appeals from that conviction and sentence.

The indictment is in these words:

"The grand jurors for the State of Missouri, summoned from the body of Polk county, empaneled, charged and sworn, upon their oaths, present that J. D. Summar, late of the county aforesaid, on the 12th day of November, 1894, at the county of Polk, State aforesaid, being then and there a person to whose care and protection one Lucy M. Davis, a female under the age of eighteen years, to wit, of the age of fifteen years, had been and was then and there confided, her, the said Lucy M. Davis, unlawfully and feloniously did defile, by then and there unlawfully and feloniously carnally knowing her and having carnal knowledge of her body, while she remained in his care and protection, custody and employment, she, the said Lucy M. Davis, being then and there confided to the care, custody and employment of the said J. D. Summar, against the peace and dignity of the State." The arraignment was in due form and a plea of not guilty entered by defendant.

The evidence tended strongly to establish these facts. Lucy M Davis is the daughter of M. G. Davis and Mary E. Davis, his wife. The defendant is an uncle, by marriage, of Lucy Davis, having married her mother's sister. The two families of M. G. Davis and J. D. Summar, the defendant, lived in the same neighborhood in Polk county in this State within forty rods of each other, during the year 1894. Lucy Davis, the prosecutrix, was fifteen years old on the eighth of April, 1894. In the spring of 1894, about the tenth of March, her father was about to move his home. The defendant requested Lucy's parents to let her go and stay with his wife, saying that if they would do so he would come and help them move. A few days after her parents had become settled in their new home and while Lucy was still at defendant's house, defendant came to see her parents and asked her father to let her remain at defendant's house through the anticipated confinement of his wife. He stated to them that if they would let her stay through his wife's sickness he would treat her as one of his family and one of his own children. The father of the prosecutrix told him that Lucy could stay during her aunt's sickness if he would treat her as one of his family. Under this arrangement the girl remained with defendant under his care until sometime in June when another relative, a daughter of James Acuff, who had married her father's sister, became sick and they requested the prosecutrix to come and help them during her illness, and she went to Acuff's and assisted until the latter part of August or first of September, when she returned to defendant's house, left her clothing and then came to her father's home. That afternoon she and her sisters went to the defendant's house to get a bucket of water and defendant's wife induced her to stay and get supper, and she remained there, and did not return home with her sisters. A day or two after this the mother of prosecutrix testifies that the defendant told her he wanted Lucy to stay at his house and go to school. He said he would send her to school and take care of her and treat her as one of his own children. She told him she would rather for her to come home and go with her sisters. Defendant said if "I would let her stay there and go to school he would furnish her books and let her go to school and she could help do his work night and morning." The father of the girl testified that when the defendant asked his consent to having the girl stay at his house, that he didn't want her to stay at defendant's, but he acquiesced in the arrangement simply to avoid a fuss, and he did not go and take her by force after the defendant insisted on her staying. She kept her clothing at defendant's house and her washing was done there. William Hyder testified that in a conversation with him in the fall of 1894 defendant said he had taken Lucy "to raise and take care of the same as his own family, as his own child, and that he was going to take her with him, referring to his moving to Taney county." T. J. Hawkins testified he married defendant's wife's sister. In the fall prior to defendant's moving away the prosecutrix was living at defendant's house and the witness heard a conversation of defendant with witness' wife as to how Lucy was living with him, and defendant said "he had taken her and she was living there as his own child." Defendant testified, and did not deny any of the statements attributed to him by the girl's parents that if they would let him keep her he would send her to school, buy her books and treat her as his own child, and did not contradict the statements of Hyder and Hawkins that he had agreed to treat her as his child. The evidence tending to prove that he had carnal knowledge of the girl in his own house during the time she lived with him consisted of the girl's direct testimony to the fact, and the circumstances, and of his efforts to get the witness Mann to marry her, offering to furnish him land and a team to work it if he would do so, also his effort to get Hyder to take the girl to Ashgrove...