Summary
In State v. Campbell, 324 Mo. 249, 22 S.W.2d 645 (1929), the Missouri Supreme Court held that where the defense was alibi it was prejudicial error for the trial court to instruct the jury it could convict if it found the offense to have been committed at any time within the three-year statute of limitations.
Summary of this case from Commonwealth v. BoyerOpinion
December 11, 1929.
SEDUCTION: Instructions: Contradictory: Misleading: Within Three Years: Alibi. Where the information charges that the act of seduction was committed on August 12th, and the State's evidence warrants a finding that the offense was committed either on July 4th or August 15, 1926, and there is no motion to elect, and defendant denies that he was ever with prosecutrix after July 11th and in this is supported by three witnesses as to the period extending from August 7th to August 28th, and the court gives an instruction on the defense of alibi directing an acquittal if the jury has a reasonable doubt as to the presence of defendant at the time and place of the commission of the offense "as shown by the State's evidence," it is error to give an instruction telling the jury to find defendant guilty if they find from the evidence that he seduced the prosecutrix "at any time within three years next before the 27th day of June, 1927," the day on which the information was filed. The defendant's instruction is contradicted by the State's instruction, and whether the two are contradictory or not the State's instruction, in view of the issue presented by the evidence, is confusing and misleading, and therefore prejudicial.
Appeal from Clark Circuit Court. — Hon. Walter A. Higbee, Judge.
REVERSED AND REMANDED.
Jayne, Jayne Jayne and Charles Hiller, for appellant.
(1) The information should state sufficient facts that it can be determined from its face that defendant is liable to punishment if all the alleged facts are proven. That is the only reason for the rule that requires the information to allege facts that avoid the statute of limitations when the crime is charged to have been committed at a date when ordinarily the statute of limitations would bar the prosecution. The information in this case by charging that the crime was committed on the "12th day of August" (without stating any year) did not state all the facts necessary to determine whether the defendant was liable to punishment. State v. Colvin, 284 Mo. 195. (2) It is an essential element of the crime that the prosecuting witness be unmarried. There must be proof of this fact. Sec. 3259, R.S. 1919. (3) The information charged the crime to have been committed on August 12th; the proof was that it was on August 15, 1916. An alibi was proven. There was no attempt to amend the information and charge some other date. The court by Instruction 2 should not have given the jury permission to go back for three years and find defendant guilty "at any time." (4) The prosecuting witness was not sufficiently corroborated as to the promise of marriage, and being contradicted by her own written letters the court should have directed a verdict of acquittal, or granted defendant a new trial. Sec. 4029, R.S. 1919.
Stratton Shartel, Attorney-General, and Ray Weightman, Assistant Attorney-General, for respondent.
(1) The information in this case properly charges the crime of seduction under promise of marriage. Secs. 3259, 3908, R.S. 1919; State v. Wallace, 289 S.W. 871; State v. Hinds, 14 S.W.2d 560. (2) The evidence offered by the State was sufficient to make a case for the jury. State v. Wallace, supra; State v. Hinds, supra; State v. Shiflett, 273 S.W. 727; State v. Stemmons, 275 Mo. 550. The corroborating testimony of promise of marriage offered by the State was sufficient. There was no rebuttal or denial of the evidence that prosecutrix prepared certain household linen and bought dishes in readness for the assumption of her marital status. State v. Sharp, 132 Mo. 165; State v. Thornton, 108 Mo. 640; State v. Bobbitt, 270 S.W. 378. (3) Instruction No. 2 was not erroneous. The proof was not confined to the fifteenth day of August. More than one act of intercourse was shown in the evidence and for that reason the court properly authorized the jury to find the defendant guilty if "at any time within three years before June 27, 1927, defendant did seduce the prosecuting witness under promise of marriage."
By an information filed in the Circuit Court of Schuyler County, the defendant was charged with the seduction, under promise of marriage, of an unmarried female of good repute and under twenty-one years of age. The venue was changed to the Circuit Court of Clark County, where he was convicted and his punishment fixed at imprisonment in the penitentiary for two years. Following judgment and sentence in accordance with the verdict, he was allowed an appeal to this court.
According to the testimony of the prosecutrix, Lillie Maud Williams, she was seventeen years of age at the time of the alleged offense. Her name had always been Lillie Maud Williams. Her father was dead. She lived with her mother, Mrs. Mollie Williams, near Queen City, in Schuyler County. She first met the defendant in Memphis, Missouri, in the early part of May, 1926, and from that time, until about the middle of August, 1926, he frequently came to her home, near Queen City, to see her, and they were together frequently on automobile trips in that vicinity. At first, he treated her "as a gentleman should treat a lady," but, after awhile, he asked her to have sexual intercourse with him. At that time, she refused to do so and told him she "wasn't that kind of a girl." Later, she yielded to his solicitation to have sexual intercourse with him, because he told her he loved her and promised to marry her in the following September, and because she loved him and believed he would keep his promise. This happened in the afternoon of July 4, 1926, on a "by-road" between Downing and Lancaster, in Schuyler County. "Along the middle of August, 1926, around the 15th somewhere," she had sexual intercourse with the defendant twice during the same evening, because of his promise and assurance that they "would soon be married." Their first act of sexual intercourse on that occasion occurred along the road between Downing and Lancaster, in Schuyler County, and the second along the road about one mile from her home, in Schuyler County. She was never with the defendant thereafter. On the last Sunday afternoon in August, 1926, he came to her home to see her, but she was not there. During the summer she did "some quilting" and made a dresser scarf, in preparation for her marriage, and asked her mother to buy her wedding dress. About the first of September, 1926, she discovered that she was "in the family way," and immediately wrote and mailed a letter to the defendant, in which she advised him of her condition and asked him to come to her and keep his promise. She received no reply to that letter and the defendant never offered to keep his promise. She and the defendant exchanged letters, both before and after that time. She gave birth to a child on May 19, 1927. The defendant is the father of her child. She never had sexual intercourse with any other man.
The story of the prosecutrix was corroborated, in part, by her mother, who testified that the defendant "kept company" with her daughter "all summer," in 1926, and that, during the defendant's courtship of her daughter, her daughter "made dresser scarfs, stand table cover, quilts, top for one comfort, and she got some dishes as I could give her the money." She further testified that her daughter "wanted money to get a dress," made of blue silk and white lace.
The constable, who arrested the defendant, testified that the defendant "didn't deny doing business with her [the prosecutrix], but said it wasn't his kid."
The State also offered proof of the good reputation of the prosecutrix, for virtue and chastity.
The defendant, testifying in his own behalf, said that he lived in Memphis, Missouri, and was twenty-three years of age in November, 1927; that he met the prosecutrix in Memphis, Missouri, on May 8, 1926, and between that time and July 11, 1926, was with her on various occasions, but never, at any time, promised to marry her; that, after July 11, 1926, he never saw her again until the day of his preliminary hearing, in June, 1927; that, on July 25, 1926, he went to her home to see her, but she was not at home; that he received several letters from the prosecutrix, but none in which she mentioned her condition of pregnancy, nor any promise of any kind on his part. He identified ten letters, which he said were all of the letters he ever received from the prosecutrix, and which were offered in evidence in connection with his testimony. The first of these letters is dated July 26, 1926, and the last May 16, 1927. According to the dates thereof, the other eight letters were written in the months of July and August, 1926, and March, April and May, 1927. One of the letters is signed "Lillie Williams," three of them are signed "Lillie to Cleo," and the other six are signed "Lillie." The letter dated July 26, 1926, among other things, contains the following: "I am sorry that I was not at home yesterday." All of the letters are written in terms of endearment, but nothing is said in any of them concerning the pregnancy of the prosecutrix, nor the alleged promise of the defendant to marry her.
Three witnesses, Mrs. Ed Randall, her daughter Mabel Randall, and her sister Anna Belle Anders, testified that, from August 7th to August 28, 1926, the defendant worked on Mrs. Randall's farm, near Memphis, Missouri, and stayed in the Randall home, on the farm, every night. Mabel Randall and Anna Belle Anders further testified that they were with the defendant every time he was away from the Randall farm during the period mentioned.
Other witnesses testified to the good reputation of the defendant, for peaceful and law-abiding citizenship.
I. The defendant seriously complains of the State's instruction numbered 2, for the reasons hereinafter indicated.
By this instruction, the jury was authorized to convict the defendant, if they found that he seduced the prosecutrix, under or by promise of marriage, etc., "at any time within three years next before the 27th day of June, 1927," the day on Instructions: which the information was filed. At the request Contradictory: of the defendant, the court gave the following Misleading. instruction on the defense of alibi:
"The defendant has interposed as a defense what is known in law as an alibi, that is, that even if the offense was committed, as charged, he was at the time of the commission thereof at another and different place than that in which such offense was committed, and, therefore, was not and could not have been the person who committed the same. Now, if the evidence leaves in your minds a reasonable doubt as to his presence at the place where the offense was committed at the time of the commission thereof, you will find him not guilty."
The information charges that the offense was committed on "the 12th day of August," omitting the year. For the purpose of this opinion, August 12, 1926, may be taken as the time intended to be charged, as shown by the complaint and affidavit filed before the justice of the peace. The State's evidence was such as to warrant a finding that the offense was committed, either on July 4, 1926, or about August 15, 1926, the defendant having failed to file a motion to elect. The defendant denied that he was ever with the prosecutrix after July 11, 1926. In this, he was supported by three witnesses, as to the period extending from August 7th to August 28, 1926. The defendant's instruction on the defense of alibi was intended to direct an acquittal, if the jury had a reasonable doubt as to his presence at the time and place of the commission of the offense, as shown by the State's evidence, although such is not the exact language of the instruction. Unless so considered, it served no purpose. Given the meaning intended, it was contradicted by the State's instruction numbered 2, which authorized a conviction, if the jury found that the defendant committed the offense, "at any time within three years next before the 27th day of June, 1927." Whether these instructions are regarded as contradictory or not, it must be conceded, in view of the issue presented by the evidence, that the State's instruction numbered 2 was confusing and misleading and therefore prejudicial. Similar instructions, under similar circumstances, were held to be prejudicial in State v. Socwell, 318 Mo. 742, 300 S.W. 680; State v. Fellers, 140 Mo. App. 723, 127 S.W. 95; State v. Campbell (Mo. App.), 260 S.W. 542.
II. It will suffice to say that we find no substantial merit in any of the other complaints of the defendant. Other Because of the prejudicial error in the State's Complaints. instruction numbered 2, the judgment is reversed and the cause remanded. Davis and Cooley, CC., concur.
The foregoing opinion by HENWOOD, C., is adopted as the opinion of the court. Blair, P.J., and White, J., concur; Walker, J., absent.