The State v. Wade

• Citation: 268 S.W. 52,306 Mo. 457
• Decision Date: 31 December 1924
• Docket Number: 25621
• Parties: THE STATE v. GEORGE WADE, Appellant
• Court: United States State Supreme Court of Missouri

268 S.W. 52

306 Mo. 457

THE STATE v. GEORGE WADE, Appellant

No. 25621

Supreme Court of Missouri

December 31, 1924

Appeal from Monroe Circuit Court; Hon. Charles T. Hays Judge.

Affirmed.

A. T Stuart and E. L. Alford for appellant.

(1) The giving of Instruction 1 on behalf of the State was error. This instruction misdirected the jury as to the range of punishment which the instruction informed the jury they should assess in the event they found the defendant guilty. Sec. 3709, R. S. 1919; Laws 1921, p. 284a, sec. 3248; State v. Sands, 77 Mo. 118; State v McNally, 87 Mo. 644, 658; State v. Tull, 119 Mo. 421; State v. Snyder, 98 Mo. 555; State v. Britton, 183 S.W. 295. (2) Instruction 3 given for the State advised the jury carnal knowledge of an unmarried female of previous chaste character and between the ages of fifteen and eighteen years is unlawful, whether the act was with or without the consent of such female, and omitted to state that the defendant must be over the age of seventeen years. This was error. State v. Johnson, 76 Mo. 121; State v. McLain, 159 Mo. 340; State v. McNally, 87 Mo. 658. (3) It is the duty of the court, whether requested or not, to instruct the jury on all the law of the case and upon all issues presented. The phrase "previous chaste character" as used in the instruction was not defined by the court and failure to do so was error. State v. Conway, 241 Mo. 271; State v. Foster, 225 S.W. 671; State v. Luckett, 246 S.W. 882; State v. Cook, 207 S.W. 833; State v. Douglass, 258 Mo. 281; State v. Connor, 252 S.W. 713. (4) The trial court refused to give defendant's offered instructions numbered 3, 4, 5 and 6 for the reason assigned by the court that said instructions had been covered by other instructions given by the court of its own motion. These refused instructions covered the issue of presumption of innocence and burden of proof. It was reversible error for the court to refuse such instructions since the court undertook in one instruction to cover all such issues and the same were commingled in such instruction and did not sufficiently and clearly direct the jury thereon. State v. Douglass, 258 Mo. 281. (5) The evidence disclosed by the entire record was insufficient to justify or support the verdict of the jury and it should not be permitted to stand. Burkett v. Gerth, 253 S.W. 202; State v. Remley, 237 S.W. 489; State v. Tevis, 234 Mo. 276; State v. Smith, 259 S.W. 506; State v. Goodale, 210 Mo. 275; State v. Brown, 209 Mo. 413; State v. Wheaton, 221 S.W. 26; State v. Primm, 98 Mo. 368; State v. Wilson, 91 Mo. 410; State v. Burgdorf, 53 Mo. 65; State v. Prendible, 165 Mo. 353; Champaign v. Hamey, 189 Mo. 709, 726.

Jesse W. Barrett, Attorney-General, and William L. Vandeventer, Special Assistant Attorney-General, for the State.

(1) Instruction 1, under the provisions of Sec. 3709, R. S. 1919, incorrectly stated the law as to punishment. But in this class of cases the court assesses the punishment and that part of the instruction may be treated as surplusage. The jury only finds the guilt or innocence of the appellant and if they assess the punishment it is considered only as a recommendation. Sec. 3248, p. 284a, Laws 1921; Sec. 3248, R. S. 1919; State v. Shearon, 183 S.W. 293; State v. Perrigan, 258 Mo. 233; State v. Hamey, 168 Mo. 167, 197. (2) Instruction 3 does not state that the jury must find the appellant to be over the age of seventeen, but that point was fully covered by Instruction 1. Instructions must be construed together and if, when so construed, they state the law, they are sufficient. State v. Finklestein, 213 S.W. 465; State v. Hostetter, 222 S.W. 750; State v. Jones, 225 S.W. 898; State v. Arnett, 278 Mo. 333; State v. Hembree, 242 S.W. 911. (3) No issue was raised as to the previous chaste character of the prosecuting witness and the court's failure to define "previous chaste character" in its instructions was not error, insomuch as it was not requested by appellant. State v. Garrett; 285 Mo. 279; State v. McNamara, 100 Mo. 107; State v. White, 263 S.W. 192; State v. Carr, 256 S.W. 1044. (5) Every element of the offense charged was proven. The jury so found, and this court will not disturb their findings. State v. Stroughton, 189 S.W. 601; State v. Ivy, 192 S.W. 737; State v. Conley, 280 Mo. 21; State v. Thompson, 222 S.W. 789.

David E. Blair, P. J. White, J., concurs; Walker, J., absent.

OPINION

BLAIR

Defendant was convicted in the Monroe County Circuit Court of the crime of having carnal knowledge of an unmarried female of previous chaste character, between the ages of fifteen and eighteen years. He was sentenced to imprisonment for a term of two years and has appealed. The proof shows that the acts charged against defendant occurred on May 20, 1921. The law, as defined by Section 3248, Revised Statutes 1919, therefore governed the facts necessary to constitute the crime.

As the defendant earnestly contends that the case should not have been submitted to the jury and that we should not permit the conviction to stand, it is necessary to detail and to discuss the facts quite fully. The evidence itself is quite short.

The prosecutrix, Edna Carnes, testified that she and her mother and brother lived on a farm about one mile east of Paris, in Monroe County. Her brother had died prior to the trial. The defendant worked on said farm as a farm hand from March until June, 1921. On May 20, 1921, defendant was plowing in a field about one-half mile from the house where Edna and her mother lived. Edna was also working in the same field, running a disc. Her brother had helped her harness the team and get started and then went to town. Her mother was at work at the house. Something went wrong with the harness or the disc, and defendant assisted Edna in fixing it. Her testimony as to what occurred is the following in substance:

Defendant said "he wanted me to be his girl." Edna said, "No." He said, "Why?" She said, "Mother did not let me have company." Defendant then went on back to his work. About an hour later Edna stopped her team to rest, and defendant stopped his team about two rods away and came over to her. Her testimony then proceeded as follows:

"Q. What was the first thing he said? A. He said, 'I had to be his girl or he would quit work if I would not have intercourse with him.' He said 'he would leave,' and he said, 'Every body else did it, almost all the girls had intercourse with the boys;' and he persuaded me until I had to give up."

She then testified that defendant had intercourse with her and told her not to tell her mother anything about it. They were right by the disc and were standing up. She said defendant pulled her off the disc and then had intercourse with her. He then said, "Everything will be all right," and he told her "not to tell my mother or he would quit work."

The witness then testified to facts tending to prove penetration. Both she and defendant then resumed work in the field until noon. About ten minutes were consumed in the occurrence which she detailed. Edna stayed at home that afternoon and helped work about the house and worked there the following day. She was fifteen years old at the time and had not been married and had never had sexual relations with any man prior to the act with defendant. Defendant was over seventeen years of age.

On cross-examination it was shown that the field, where the act is said to have occurred, was "kindy level" and had no corn or other vegetation growing upon it. There was no one in the field except Edna and the defendant. She had not known defendant before he went to work in March. He had been engaged about the place ever since he came, at plowing, etc. His home was about eight miles away. He continued to work there until June 25, 1921, or about five weeks after the alleged occurrence.

The testimony of defendant was that he lived five miles south of Paris and had lived there all his life, except while he was in the army seventeen months during 1918 and 1919, when he saw service as a soldier in the United States and in France. He said he worked for Eddie Carnes on May 20, 1921, and was plowing on that day and that Eddie and Edna Carnes were there. He also said that one Buford was there. His testimony then proceeded as follows:

"Q. Now I will ask you if at that time you asked her to be your girl? A. No, sir.

"Q. I will ask you if you put your arms around her? A. No, sir.

"Q. Ask you if you touched her in any wise? A. No. sir.

"Q. I will ask you if you told her you was going to quit if she would not be your girl? A. No, sir I did not.

"Q. Now, I will ask you if you was over to that disc where she was any other time during that day? A. No, sir.

"Q. I will ask you if you had sexual intercourse with Edna Carnes May 21, 1921? A. No, sir, I did not.

"Q. May 20th I believe it is? A. No, sir, I did not."

On cross-examination he was asked how long he had been working at the farming business, and said, ever since he had been big enough; for something like fifteen or sixteen years. He said he began working for Eddie Carnes March 23rd and quit the latter part of June. On re-direct examination he denied telling Edna Carnes not to tell her mother anything.

This was all the testimony in the case, except the defendant called five witnesses who testified that his reputation for morality and good citizenship was good. The State did not attempt to show that defendant did not sustain such reputation.

I. Appellant contends that his demurrer at the close of all the evidence should have been given, and that we should now reverse the judgment rendered upon the verdict for the same reason. It is not contended that there is not clear and positive testimony in the record upon every essential element of the...