The State v. Teeter

• Decision Date: 06 February 1912
• Citation: 144 S.W. 445,239 Mo. 475
• Parties: THE STATE v. CLAUDE TEETER, Appellant
• Court: Missouri Supreme Court

144 S.W. 445

239 Mo. 475

THE STATE v. CLAUDE TEETER, Appellant

Supreme Court of Missouri, Second Division

February 6, 1912

Appeal from Grundy Circuit Court. -- Hon. Geo. W. Wanamaker, Judge.

Reversed and remanded.

Hewitt & Hewitt for appellant.

(1) The motion to quash the information should have been sustained. (2) It was highly improper and prejudicial for the prosecuting attorney in his opening statement to state "She was seduced on February 28, 1909; on December 8 1909 the child was born." (3) The defendant objected to the following statement of the prosecutrix, "Well, when he first tried to seduce me, I would not consent, and I told him I did not think it was right, and he so fully made me believe, and said we were going to be married, and wouldn't be anything of it," on the ground that it was a conclusion and not responsive and defendant moved that it be stricken out. Which objection and motion was overruled. The answer was not the statement of a fact, was the statement of a conclusion of the witness, and was not responsive to the question propounded. State v. Foley, 144 Mo. 618; State v. Eisenhour, 132 Mo. 145; Waddell v Railroad, 113 Mo.App. 686. (4) The following question was propounded to Mabel French, by prosecuting attorney "Q. Now I will ask you if prior to the 28th day of February, 1909, and just prior, if he did not seduce you under a promise of marriage?" The defendant objected for the reason that it was wholly improper, and only calculated to prejudice the jurors' minds against the defendant, and he is not on trial for that, and moved to strike it out. The court refused to strike it out. State v. Coleman, 186 Mo. 158; State v. Beckner, 194 Mo. 295; State v. Richardson, 194 Mo. 342; State v. Eisenhour, 132 Mo. 145. There were no circumstances in evidence which usually attend an engagement of marriage. Nowhere can there be found in the record any evidence of any statement or admission that he was engaged to be married to Ruth Bosely, outside of Ruth's evidence. State v. Reeves, 97 Mo. 668; State v. Eisenhour, 132 Mo. 141; State v. McCassey, 104 Mo. 644; Zabriskie v. State, 43 N. J. L. 640; Rice v. Coin, 100 Pa. St. 28; State v. Drew, 179 Mo. 324. (5) It will not do to say that instructions on the part of the State are cured by those on the part of the defendant. That is assuming too much for the average juror. (6) The court failed and neglected to instruct the jury to what constituted corroboration, or define the word corroborate. State v. Reeves, 97 Mo. 668; 3 Ency. Ev. 674; State v. McClaskey, 104 Mo. 644. (7) The testimony of the prosecutrix shows that the promise was conditioned upon pregnancy, and was therefore insufficient under the law. People v. Van Alstgue, 144 N.Y. 361; State v. Adams, 25 Ore. 172. (8) There was absent any corroborating evidence of the promise of marriage testified to by the prosecuting witness. There was an equipoise of oath against oath, and there can be no conviction. State v. Primm, 98 Mo. 373; State v. Brown, N. J. L. 414. The corroboration under the statute must be to the same extent as the principal witness in prosecutions for perjury. State v. Davis, 141 Mo. 522; State v. Primm, 98 Mo. 368; State v. Reeves, 97 Mo. 668; State v. Hill, 91 Mo. 423.

Elliott W. Major, Attorney-General, and Campbell Cummings, Assistant Attorney-General, for the State.

(1) After the motion to quash was filed by appellant, the State entered a nolle pros as to the second count, and thereupon the trial court overruled appellant's said motion, as the sole ground of his motion to quash was a misjoinder of offenses; the nolle pros cured the alleged error complained of. State v. Sharpless, 212 Mo. 176. (2) Appellant, in his brief, claims an objection on the ground that the answer was conclusive and not responsive to the question. It will readily be seen that the second ground not being responsive is not in the bill, and was not made at the time of the objection. All three of appellant's cases cited in his brief are on the objection of not being responsive. Appellant has cited no case showing that it was reversible error on the ground of his objection, namely, that it was "a conclusion of the witness; let her state what was said." If it is a conclusion, it is true that it is presumptively prejudicial, but it is manifest by the disclosures of the entire record that the opinion of the prosecutrix "that appellant had tried to seduce her," could not have reasonably resulted in any harm to appellant, and so it cannot be treated as prejudicial by this court. State v. Brown, 188 Mo. 464; State v. Coleman, 186 Mo. 160; State v. Cummings, 189 Mo. 643; State v. Lovell, 235 Mo. 343. If it is merely an opinion of the witness, it still might have been proper as such, as the seduction and the arts and blandishments may be partly by the manner as well as words, and in such a case the opinion of the witness would be competent, as she was qualified from opportunity and observation. 17 Cyc. 36; State v. Williamson, 106 Mo. 171; Fulton v. Railroad, 125 Mo.App. 245; Waddell v. Railroad, 213 Mo. 17; Partello v. Railroad, 217 Mo. 645; State v. Nieuhaus, 217 Mo. 332; Merritt v. Tel. Co., 215 Mo. 308; Lindsay v. Kansas City, 195 Mo. 181; Hartpence v. Rogers, 143 Mo. 630. (3) As to the alleged improper remarks of the prosecuting attorney in his opening statement, it is sufficient to state there is no such ground in appellant's motion for new trial, and, therefore, the same have not properly been preserved. State v. McKee, 212 Mo. 149; State v. Scott, 214 Mo. 261; State v. Wiese, 136 S.W. 240; State v. Brannon, 206 Mo. 636; State v. Marshall, 36 Mo. 400; State v. Hultz, 106 Mo. 41; State v. Grant, 144 Mo. 66. As to the prosecuting attorney's remarks in his closing argument to the jury, it is sufficient to state that none of the argument appears in the bill of exceptions, and, therefore, has not been properly preserved. State v. Brooks, 202 Mo. 118; State v. Chenault, 212 Mo. 137; State v. Sassaman, 214 Mo. 736; State v. Baker, 209 Mo. 451; State v. DeWitt, 191 Mo. 58. Appellant complains of the following asked of a State's witness in rebuttal: "Q. Now, I will ask you if prior to the 28th day of February, 1909, and just prior, if he did not seduce you under the promise of marriage?" It will be observed from an examination of the bill of exceptions, that no request was made to rebuke the State's attorney for propounding the question, and no request made by appellant that the court should direct the jury to disregard it. The court treated his motion as directed towards the answer of the witness, and appellant's counsel did nothing to correct the erroneous impression of the trial court. The case of State v. Coleman, 186 Mo. 158, is directly in point. (4) The corroboration of the promise of marriage need not be of such force as would prove the fact of itself independently of the prosecutrix's testimony, nor need the corroborating circumstances be equal to a second witness (State v. Hill, 91 Mo. 423; 35 Cyc. 1363, 1364) or equal or tantamount to those testified to by the prosecutrix. State v. Davis, 141 Mo. 522. The admissions of appellant that he had promised to marry the prosecutrix are corroborative. The statute does not require the testimony of two witnesses. State v. Sublett, 191 Mo. 163; State v. Whitworth, 126 Mo. 573; State v. Phillips, 185 Mo. 187; State v. Sharp, 132 Mo. 165; State v. Marshall, 137 Mo. 463. The language used in making the promise of marriage is not material, provided it was intended to convey that meaning and was so understood by the prosecutrix. 35 Cyc., 1336, 1337; State v. Sortviet, 100 Minn. 12; State v. Brinkhaus, 34 Minn. 285; State v. Hill, 91 Mo. 423; State v. McCaskey, 104 Mo. 646; State v. Eisenhour, 132 Mo. 147; State v. Davis, 141 Mo. 525.

BROWN, J. Ferriss, P. J., and Kennish, J., concur.

OPINION

BROWN, J.

Defendant was convicted on a charge of seducing and debauching, under promise of marriage, one Ruth Bosley, an unmarried female. From a judgment fixing his punishment at three years in the penitentiary, he appeals.

The information contained two counts; in one, defendant is charged with seducing prosecutrix under promise of marriage; and in the other, with having unlawful carnal knowledge of said prosecutrix.

According to the evidence of prosecutrix, her entire courtship with defendant was conducted at the home of her aunt, Mrs. Sarah Call, who resided a few miles from the home of prosecutrix. She testified that on February 28, 1909, during his second visit to her, defendant proposed marriage; that she accepted, and an hour or so later, he seduced her under said promise. He continued his visits for about four weeks, when, upon learning that she was pregnant, his visits ceased. A child was born to her in December, 1909, which she says was the product of her intercourse with defendant.

There was substantial evidence tending to prove that prosecutrix was under eighteen years of age and of good repute when the alleged seduction took place; and there was also substantial evidence indicating that she was unchaste before defendant began keeping company with her.

Defendant was sworn as a witness in his own behalf, and in rebuttal the State introduced evidence tending to prove that his reputation for morality was bad.

Such additional evidence relating to the alleged promise of marriage as will be necessary for a full understanding of the case, will be noted in our opinion.

Defendant seeks a reversal of the judgment on the following grounds:

1. Because the court erred in overruling defendant's motion to quash the information on the ground that it contained a misjoinder of causes of action.

2. Alleged erroneous instructions on the part of the State.

3. Improper remarks of the prosecuting...