The State v. Wallace

• Decision Date: 20 December 1926
• Docket Number: 27366
• Parties: The State v. J. D. Wallace, Appellant
• Court: Missouri Supreme Court

289 S.W. 871

316 Mo. 72

The State v. J. D. Wallace, Appellant

No. 27366

Supreme Court of Missouri

December 20, 1926

Appeal from Douglas Circuit Court; Hon. Fred Stewart Judge.

Affirmed.

Geo. T Meador, J. L. Bess and J. D. Wallace for appellant.

(1) The demurrer offered at the close of the State's testimony should have been sustained, as the prosecutrix's own testimony conclusively showed that she had wandered so far from the path of virtue before she ever met defendant as to render her seduction by him an impossibility. She had not only had a baby by her own brother some seven or eight months prior to the time of the alleged seduction, but was guilty of a felony under the laws of the State, and is under parole to the Missouri State Penitentiary. It was error to submit the case to the jury. State v. Drummins, 274 Mo. 632; State v. McFarland, 190 S.W. 8; State v Stocker, 190 S.W. 294; State v. Patterson, 88 Mo. 88. The prosecutrix's own testimony shows that she was nothing more than a common prostitute willing to sell her person to any man on every occasion. In a case of seduction, it is immaterial whether a bad reputation is caused by imprudence or by crime, and by her own admissions she was guilty of both. Reputation means more than her reputation for virtue and chastity, and this woman had not trod the path of virtue since she was thirteen years of age. The Statute of Limitations had not run against the felony she had committed in this State. State v. Wheeler, 94 Mo. 252; State v. Geye, 299 Mo. 348; State v. Donnington, 246 Mo. 355. (a) The evidence considered as a whole does not constitute sufficient corroboration of any promise of marriage by the defendant and accepted by the prosecutrix, and is not sufficient to overcome the legal presumption of innocence and the testimony offered by the defendant. State v. Donnington, 246 Mo. 343; State v. Ben Bruton, 253 Mo. 361; State v. Thomas, 231 Mo. 41. The promise of marriage must be corroborated, and precede the seduction and be unconditional. An alleged promise of marriage not preceded by any courtship shows that it was not made. The attempted corroboration of her testimony by Julia Kilbuck and Bertha Howard was not only inadmissible, but highly prejudicial to the defendant, and related to matters that occurred after the alleged seduction. No admission was ever made by the defendant to these witnesses that he had promised to marry this girl, and the statements that he did make to them were made under duress, under threats of immediate arrest. State v. Evans, 267 Mo. 175; State v. Reeves, 97 Mo. 677; State v. Thomas, 231 Mo. 41; State v. Eisenhour, 132 Mo. 140; State v. Wheeler, 108 Mo. 658; State v. Bruton, 253 Mo. 361; State v. Long, 257 Mo. 199. (b) The evidence of Margaret Joslin did not corroborate any promise of marriage, and according to the prosecutrix's own testimony the incidents referred to occurred prior to any alleged promise of marriage, and it was error for the court to have admitted her testimony. State v. Long, 257 Mo. 210; State v. Teeter, 239 Mo. 475; State v. Adams, 274 S.W. 21. (c) Where the State relies upon facts and circumstances to corroborate the prosecuting witness' testimony as to the promise of marriage, they should be such as attend an engagement of marriage; such as length of courtship, its duration, consistency, and certainly in this case, where the prosecuting witness admits she never saw the defendant but three or four times in her life, and the promise of marriage was not preceded by any courtship, the case should not have been submitted to the jury, nor the evidence offered by her in corroboration. State v. Wheeler, 108 Mo. 665; State v. Stocker, 190 S.W. 294. (d) The prosecuting witness admits that she is guilty of the crime of incest with her brother, and under the statute she was not a woman of good repute, and conviction should not be sustained. State v. Primm, 98 Mo. 368; State v. Wade, 268 S.W. 54.

North T. Gentry, Attorney-General, for respondent.

(1) The instructions fully covered the issues in the case, and very fairly presented the defendant's side to the jury. But even if the instructions were erroneous, defendant is in no position to complain as he did not save any exceptions to the giving of the instructions at the time. State v. Finley, 193 Mo. 211; State v. Kretschmar, 232 Mo. 43. (2) The evidence is sufficient. (a) In a seduction case where the evidence is conflicting, this court said: "The weight to be given to it was for the jury, whose peculiar province it was to pass upon such matters, and this court will not interfere where there is substantial evidence to support the verdict." State v. Davis, 141 Mo. 526; State v. Babbitt, 270 S.W. 378; State v. Drummins, 274 Mo. 640; State v. Stokes, 288 Mo. 559; State v. Dent, 170 Mo. 403. (b) "The authorities clearly show that, because a female may at some period of her life have so forgotten her sphere, and self-respect, as to have yielded to temptation on one single occasion about which no one knows save and except herself and the other person engaged; she, by reason thereof, does not become of bad repute, entitled to no protection under the law, a prey to the lust of man, who, by reason of her misfortune, becomes licensed to deceive and betray her and find justification of his conduct, or immunity from punishment for his crime, because, forsooth, she had on some former occasion been guilty of illicit intercourse." State v. Dent, 170 Mo. 405; State v. Sharp, 132 Mo. 173; R. S. 1919, sec. 3259; State v. Thornton, 108 Mo. 651. (3) No error was committed in admitting in evidence statements made by defendant to the effect that he had promised to marry prosecutrix. State v. Whitworth, 126 Mo. 579. Statements made by a defendant in a seduction case to the effect that he had promised to marry prosecutrix are always admissible, and are sufficient corroboration of such promise. State v. Evans, 267 Mo. 187; State v. Sublett, 191 Mo. 170-3; State v. Einenhaur, 132 Mo. 147; State v. Phillips, 185 Mo. 188; State v. Hill, 91 Mo. 423; Kenyon v. People, 26 N.Y. 203; Boyce v. People, 55 N.Y. 644; Armstrong v. People, 70 N.Y. 38; 3 Elliott on Evid., sec. 996; State v. Howard, 264 Mo. 393; State v. Sharp, 132 Mo. 165; State v. Marshall, 137 Mo. 463; 35 Cyc. 1363. (4) It is the duty of a defendant when newly discovered evidence is made the ground for a new trial, to assign the same in his motion for a new trial, and the same must be supported by the affidavits of the witnesses. State v. Smith, 247 S.W. 157; State v. Hewitt, 259 S.W. 781.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

On July 27, 1925, the Prosecuting Attorney of Greene County filed in the criminal court of said county, a verified information which, omitting formal parts, reads as follows:

"H. T. Lincoln, Prosecuting Attorney within and for the County of Greene, in the State of Missouri, under his oath of office informs the court that J. D. Wallace, late of the County and State aforesaid, on the 7th day of March, A. D. 1924, at the County of Greene and State of Missouri, did then and there under and by promise of marriage made to one Fern Staley by him, the said J. D. Wallace, unlawfully and feloniously seduce and debauch her, the said Fern Staley, she the said Fern Staley, being then and there an unmarried female of good repute and under the age of twenty-one years. Contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State."

On defendant's application, the venue was changed and the cause sent to the Circuit Court of Douglas County, where it was tried.

On September 25, 1925, defendant waived arraignment, entered a plea of not guilty, and entered upon the trial of said cause before a jury. The latter, on the date aforesaid, returned the following verdict:

"We, the Jury, find the defendant J. D. Wallace, guilty as charged in the Information and assess his punishment at two years in the State Prison Penitentiary."

Thereafter, defendant filed his motion for a new trial, which was overruled. He was thereupon granted allocution, judgment was rendered, sentence pronounced in conformity with said verdict and an appeal allowed him to this court.

The evidence on behalf of the State tends to show that defendant a man fifty years of age and married, was the Prosecuting Attorney of Oregon County, Missouri. The date of the alleged crime was March 7, 1924, in Greene County, Missouri. The prosecuting witness, Fern Stanley, testified, in substance, that she was twenty years old and had lived most of her life near Koshkonong in Oregon County, but at the time of the commission of the alleged offense, she was living at the Y. W. C. A. in Springfield, Missouri, and attending a business college; that before coming to Springfield, she gave birth to a child, the father of whom was her brother; that during her confinement, she met defendant at her father's house; that he came there to interview her in regard to her brother's conduct; that her brother was sent to the penitentiary, and later defendant collected for her some money from her grandmother's estate in Illinois; that in February, 1924, defendant went to see her at Springfield in regard to the above estate; that defendant wrote her about getting her brother paroled, and she wrote defendant she would like to have him paroled; that defendant then telegraphed her to meet him at the 8:40 p. m. train on the evening of March 6, 1924, at the depot in Springfield; that he met her according to appointment, and rode with her in a yellow taxi to the Colonial Hotel in Springfield; that she and defendant sat in the parlor of said hotel and talked about the pardon; that in the conversation defendant told her he and his wife were divorced;...