text:
    THE STATE v. DORA FLEMING, Appellant.
    Division Two,
    June 8, 1909.
    APPELLATE JURISDICTION: Misdemeanor: Lottery Ticket. The appeal from a conviction under an information charging defendant with unlawfully selling "a certain ticket and part of a ticket in a lottery, or a device in the nature of a lottery, known as a policy,” is to the Court of Appeals, there being no bill of exceptions. The statute (Sec. 2220, R. S. 1899) makes it a misdemeanor, punishable by a fine not exceeding one thousand dollars, for any person to sell or expose to sale a lottery ticket.
    Appeal from St. Louis Court of Criminal Correction. —Eon. Wilson A. Taylor, Judge.
    Transferred to St. Louis Court of Appears.

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
    At the very outset we wish to call the attention of the court to the question of jurisdiction in this cause. Sec. 2220, R. S. 1899, under which this prosecution is had, makes the offense charged a misdemeanor only. There is nothing before this court but the record proper, and nothing to show that0a constitutional question was raised in the lower court to give this court jurisdiction. Hence, we say this court is without jurisdiction to hear and determine this cause, and the same should be transferred to the St, Louis Court of Appeals.
   BURGESS, J.

By an information filed by the assistant prosecuting attorney in the St. Louis Court of Criminal Correction, the defendant was charged with unlawfully selling to one Daisy Owens, on the 19th day of April, 1907, “a certain ticket and part of ticket in a lottery, or a device in the nature of a lottery, known as a policy.” A jury being waived, the court, upon trial had, found the defendant guilty as charged, and assessed her punishment at a fine of two hundred dollars. Motions for new trial and in arrest of judgment were filed by defendant, and overruled by the court, whereupon an appeal was taken to this court.

No bill of exceptions was filed. This case falls within the provisions of section 2220', Revised Statutes 1899, which makes it a misdemeanor, punishable by a fine not exceeding one thousand dollars, for any person to sell or expose to sale a lottery ticket.

As the Supreme Court is without jurisdiction of the cause, the transcript of the record is ordered transferred to the St. Louis* Court of Appeals. All concur.


source: Caselaw Access Project

author: FOX, J.

license: Public Domain

text:
    THE STATE v. ROBERT PIPKIN, Appellant.
    Division Two,
    June 8, 1909.
    1. CARNAL KNOWLEDGE: Unmarried: Proof. Defendant was charged with carnal knowledge of an unmarried female named Ellen Bailey and one witness, who had resided for years within a half mile of her residence, in answer to the question, “Ella Bailey is not married, is she?” said, “I reckon not, sir; if she is, I never heard of it.” It further appears that prosecutrix was a member of her father’s family, whose name was Bailey, living with him and bearing the name of Ellen Bailey; that she received from defendant, as well as others, such attentions as would attend a courtship of a young lady who is not married; that she was fifteen years old; that defendant frequently called at her home and accompanied her to public places; that she had never had sexual intercourse with any one except defendant; and that during the progress of the trial she was frequently referred to, by counsel and witnesses, as “Miss Bailey,” “Bailey’s daughter,” “the Bailey girl,” “the little girl.” Held, there being no testimony to the contrary, this evidence was sufficient to warrant the jury in finding that Ellen Bailey was an unmarried female.
    2. -: Argument of Attorney: On Testimony Excluded: Father of Child. The witness had testified that no other man except defendant had ever had sexual intercourse with her, and later the court excluded her testimony that the defendant was “the father of her child.” Held, that it was not reversible error for the prosecuting attorney, in his closing argument to the jury, to say that “Ellen Bailey, the prosecuting witness, testified before you that the defendant is the author of her ruin and the father of her child;” for, while her specific testimony that he was the father of her child was excluded, yet it inevitably follows from her other testimony, if true, that he was the father of her child.
    3. -: Conflict in Evidence: Reversal. Where there is substantial testimony establishing the guilt of defendant and other testimony conflicting with it, it is the province of the jury to settle the conflict, and the Supreme Court cannot say the evidence was insufficient to support a verdict of guilty without usurping the functions of the jury.
    4. -: -: -: Majority of Witnesses. It does not follow, because only one witness testified to the essential facts necessary to constitute the offense, and four or five others testified to a state of facts tending to prove that no offense was committed, that the jury were bound to believe the testimony of the majority. In some instances the positive testimony of one witness is of greater value than the negative testimony of many others.
    Appeal from Texas Circuit Court. — Hon. L. B. Woodside, Judge.
    Affirmed.

      Lamar & Lamar for appellant.
    '(1) The State failed to show that prosecutrix was unmarried. This is fatal. This is one of the essential elements of this offense, made so by statute, without proof of which a conviction cannot stand. State v. Wheeler, 108 Mo. 663; 25 Am and Eng. Ency. Law, 235; Hughes, Crim. Law, sec. 2123; West v. State, 1 Wis. 209; 2 McClain’s Crim. Law, sec. 1113. (2) The court committed error in refusing to rebuke special counsel for the State for the language used by him in his closing argument to the jury. A prosecuting officer certainly should not be permitted, if evidence has been excluded by the court on objection of the defendant, to state such facts to the jury in the closing argument, when there is no opportunity to reply to or dispute that such facts are in evidence, and when objection is made, repeat the statement and give it additional emphasis. This alone ought to reverse the case. 12 Cyc. 574; State v. Woolard, 111 Mo. 255; State v. Ferguson, 152 Mo. 99; State v. Rose, 178 Mo. 37; State v. Lee,-66 Mo. 165 ; State v. Ulrich, 110 Mo. 350; Evans v. Town of Trenton, 112 Mo. 390; Stetzler v. Railroad, 210 Mo. 70-6; State v. Shipley, 174 Mo. 512. (3) The evidence is insufficient to support the verdict. Counsel are not unmindful of the fact that appellate courts are slow to reverse a conviction on this ground; but in this connection we call attention to the testimony in this case. The witnesses for the defendant were disinterested, of good standing, nnimpeachahle and nncontradicted save by the prosecutrix alone; and it is apparent from reading their testimony that either they or prosecutrix told a wilful untruth. The perusal of this record cannot fail to bring the conviction that these witnesses are telling the truth. In addition the above witnesses impeached Ellen Bailey’s reputation and say that her reputation in that neighborhood for chastity has been bad since she was a child, and most of them, those who were qualified to speak thereof, stated that the reputation of defendant Pipkin is good. “The doctrine of no evidence to support the verdict does not mean that literally no evidence whatever was introduced by the prevailing party, but it means that juridically considered the evidence did not tend to support the verdict which was rendered thereon. The doctrine that a mere scintilla of evidence is enough to prevent an appellate court from disturbing a verdict has been disavowed in the later cases of both the State and Federal courts.” Finkelnburg’s Appellate Practice, p. 159; State v. Mansfield, 41 Mo. 471; State v. Burgdorf, 23 Mo. 65; State v. Jaeger, 66 Mo. 173; State v. Castor, 93 Mo. 253; State v. Prendible, 165 Mo. 353; State v. Lockhart, 188 Mo. 427; State v. Crabtree, 170 Mo. 659; State v. Francis, 199 Mo. 693; State v. Gordon, 199 Mo. 596; State v. Huff, 161 Mo. 459.

      Elliott W. Major, Attorney-General, and Chas. G. Revelle, Assistant Attorney-General, for the State.
    (1) In his motion for a new trial, defendant complains that there was no evidence that prosecutrix was at the time of the alleged offense an unmarried female. An examination of the record readily discloses ampié testimony upon which the jury were warranted in-drawing the conclusion that Ellen Bailey was an unmarried female, and its weight was for their consideration. On this element the evidence might have been clearer and more positive, yet, on the whole, there was substantial evidence from which the jury was warranted in its conclusion and its findings of guilty, and the weight of the .evidence was for the jury. State v. Reed, 153 Mo. 453; Ferguson v. State, 71 Miss. 812; State v. Matthews, 202 Mo. 143; State v. McCullough, 171 Mo. 57; State v. Tetrich, 199 Mo. 100; State v. Williams, 199 Mo. 137; State v. Warner, 74 Mo. 85; Champaigne v. Harney, 189 Mo. 729. (.2) Defendant also complains that State’s counsel in his closing argument was permitted to state in an impassioned voice “that the prosecuting witness, Ella Bailey, had testified that the defendant Pipkin is the father of her child and the author of her ruin,” when he says no such testimony had been given in evidence. The prosecuting witness had testified that until she fell a victim to defendant’s lust, and he had robbed her of the jewel of her virginal purity, she had had intercourse with no one; that at no time since had she been guilty of improper relations with any person except defendant, and that in May, 1907, she had given birth to a child. His statement, however impassioned may have been the voice, and however loathing the words to defendant, was not error, but lamentably true and fully warranted by the evidence. To declare this statement improper would be to announce the rule that counsel for the State can no longer discuss criminating facts, draw reasonable inferences therefrom or arrive at logical conclusions. State v. Sublet!, 191 Mo. 174; State v. Palmberg, 199 Mo. 253; State v. Miles, 199 Mo. 552; State v. Grubb, 201 Mo. 613.
   FOX, J.

The defendant has brought this case to this court by appeal from a judgment of the circuit court of Texas county, convicting him of carnally knowing an unmarried female of previously chaste character, between the ages of fourteen and eighteen years. The information substantially charges that Robert Pipkin was over the age of sixteen years, and that he unlawfully and feloniously had carnal knowledge of one Sarah Ellen Bailey, an unmarried female, of previously chaste character, between the ages of fourteen and sixteen years of age, that is to say, of the age of fifteen years. To this information defendant entered his plea of not guilty and the trial proceeded.

The testimony developed at the trial upon the part of the State tended to prove that Ellen Bailey lived with her father on Elk Creek in Texas county, Missouri; that prosecutrix and defendant had known each other from childhood, and in May,. 1906, defendant began calling at her home and accompanying her to prayer-meeting. On the second Sunday evening in June, 1906, defendant escorted prosecutrix .to the Box School House, where prayer-meeting was being conducted, and after the services closed they started to the home of prosecutrix, accompanied by a number of other persons. In returning to their home it was necessary to pass through a hollow, up a hill and along a place where there is a bend or turn in the road. When the other persons, who were in front of prosecutrix and defendant, reached this bend in the road, and as they were passing same, defendant and prosecutrix stopped in the hollow and had sexual intercourse. Defendant continued his attentions to proscutrix, and in July following their illicit act was repeated. Counsel objected to evidence of further acts and was sustained. On the 7th day of May, 1907, prosecutrix gave birth to a child. At the time of those improper relations prosecutrix was fifteen years old and defendant was over the age of sixteen years. Prosecutrix testified that no one except defendant had ever had intercourse with her, and that on occasions other than the one when her deflowering occurred, defendant had accompanied her along the same road, and when practically the same crowd were with them. Emmet Tate, Dr. O. W. Harmond, J. W. Dickerson, E. W. Seers, John Tate, George Robertson and M. Morgan, all testified that they were near neighbors and had been acquainted with prosecutrix for several years, and that her general reputation for chastity was good prior to this trouble. There was also testimony tending to show that Ellen Bailey was an unmarried female at the time it is alleged the offense was committed.

On the part of the defendant Mrs. Ollie Morris, Albert Jackson, Clint Owens, Mrs. Dora Owens and Mrs. Nannie Morris all testified that they attended prayer-meeting at the Box School House on the first Sunday evening in June, 1906, and that on this occasion and on the return trip home they were in.a crowd with defendant and prosecutrix when passing along the road where prosecutrix testified she and defendant first had intercourse, and that on this occasion defendant accompanied the prosecutrix; that some of the party were in front and some in the rear of defendant and prosecutrix, all being in close proximity to each other, and that defendant and prosecutrix did not stop in the hollow and that nothing of the nature described by prosecutrix took place on that occasion; and that this was the only time when they passed this place in company with defendant' and prosecutrix. They also testified, as did other witnesses, that the reputation of the prosecutrix for virtue and chastity was bad, while defendant’s reputation for honesty, truthfulness and virtue was good. These witnesses all stated the respective positions of the various parties with reference to each other on that occasion of two years past, yet on cross-examination they were unable to state who else was at the- prayer-meeting’, who conducted the same or where they were at other times; they also testified that nothing happened on the occasion referred to to especially attract their attention thereto, or to cause their memory to be so charged with reference thereto. Lula Bryant testified that on the second Sunday in June, 1906, she met defendant at Sunday school and -[hat she and he went from there to the home of her grandfather, where defendant remained with her until about 8 p. m., and that defendant is still showing her marked attentions. Defendant denied having ever had intercourse with prosecutrix, but admitted accompanying her to the schoolhouse and back home on the first Sunday evening in June, 1906, but denied being with her on the second Sunday in June, as testified to by her.

At the close of the evidence the court fully instructed the jury upon every subject connected with the commission of the offense to which the testimony was applicable. The cause being submitted to the jury they returned their verdict finding the defendant guilty as charged in the information, and assessed his punishment at three months’ imprisonment in the county jail. Timely motions for new trial and in arrest of judgment were filed and by the court taken up and overruled. Judgment was entered in accordance with the verdict, and from this judgment the defendant prosecuted this appeal, and the record is now before us for consideration.

OPINION.

The assignments of error as disclosed by the record, which are relied upon by the appellant as grounds for the reversal of this judgment, may thus be briefly stated:

First. That the State failed to prove that the prosecutrix, Ellen Bailey, was an unmarried woman.

Second. That, the court erred in refusing to rebuke the prosecuting attorney for the State for improper language used by him in the closing argument by making statements to the jury concerning facts which were not in evidence.

Third. That the evidence developed upon the trial of this canse was insufficient to support the verdict and finding of the jury and that the verdict as returned by the jury was manifestly the result' of passion and prejudice.

I.

It is insisted by learned counsel for appellant that there was no evidence that prosecutrix was at the time of the alleged offense an unmarried female. It is sufficient to say as to this insistence that we have carefully analyzed the disclosures of the record as applicable to this subject, and while it may be said that the testimony may have been made more satisfactory,yet we are unable to agree with learned counsel that, there was not ample evidence to submit that question to the jury." Solomon Blessing, a witness for the defendant, who for a number of years resided within one-half mile of prosecutrix and had known her well during that time, testifying upon this subject, said: “Q. Ella Bailey is not married, is she? A. I reckon not, sir; if she is, I never heard it.” It further appears that the prosecutrix was a member of her father’s household and living with him, bearing the name of Ellen Bailey. It also appears from other disclosures of the record that Ellen Bailey received from defendant, as well as others, such attentions as would attend a courtship of a young lady who is not married. The prosecutrix testified that the defendant frequently called at her home and accompanied her to public places. It also appears from the disclosures of the record that the prosecutrix testified that she had never had intercourse with any one except the defendant. This, at least, is a strong circumstance tending to show that she was - unmarried. It also appears that her father’s name was Bailey, and that her name was Bailey. During the progress of the trial she was frequently referred to by counsel as well as the witnesses as “Miss Bailey,” “Bailey’s daughter,” “the Bailey girl,” and “the little girl.” Witness Jackson referred to her as “Miss Bailey.”

In State v. Buck, 43 Mo. App. l. c. 447, in discussing the elements of the offense in that case, the court used this language: “The information would undoubtedly have been clearer and better, if it had charged in direct language that Miss Linnie Evans was a single woman; but the employment of the word ‘Miss,’ which is commonly used to designate a woman who has never been married, does state that fact at least inferentially. ”

In the case of State v. Reed, 153 Mo. 451, it was insisted, as in the case at bar, that there was no sufficient proof that the female who was charged to have been seduced, was an unmarried woman. Judge Burgess, in speaking for this court, ruled, and correctly so, that it was essential in that case, in order to warrant a conviction, to prove that the female charged to have been seduced was unmarried; however, in further discussing the proposition he announced the rule that it was not absolutely necessary that such fact be shown by direct and positive evidence, but like any other fact it may be shown by facts and circumstances detailed in evidence, and in that case there was no positive or direct proof that the female was unmarried, yet it was held that the facts and circumstances disclosed by the record were sufficient to warrant the jury in reaching the conclusion that she was an unmarried female. So we say in this case, taking the entire disclosures of the record, and in the absence of any testimony to the contrary, the facts and circumstances as shown by the evidence in this cause were entirely sufficient to warrant the jury in finding that Ellen Bailey was at the time of the alleged commission of the offense an unmarried female.

H.

It is next insisted that the court erred in refusing to rebuke William L. Hiett, the acting prosecuting attorney for the State, for using improper language in his closing argument to the jury. The prosecuting attorney, in his closing argument, employed this language: “Ellen Bailey, the prosecuting witness, testified before you that the defendant is the author of her ruin and the father of her child.” To these remarks the defendant objected, and duly preserved his exceptions to the making of such remarks. The court did not undertake to rebuke the prosecuting attorney. Learned counsel for .appellant insists that this constitutes such error as would authorize the reversal of this judgment. In treating of this insistence it is essential that we determine what Ellen Bailey did testify to concerning- this subject. Without objection upon the part of the defendant, she testified that she had never had intercourse with any other man except the defendant Robert Pipkin. This testimony was not excluded, but the additional question was asked Ellen Bailey as to whether or not Robert Pipkin was the father of that child, and she answered, “Yes, sir.” This question and answer were objected to by the defendant, and'the objection was sustained, and the question and answer excluded. Now, while it is true that the prosecuting attorney should not have stated to the jury in terms that- Ellen Bailey testified that the defendant was the father of her child, for the reason that that testimony had been excluded by the court, but as to the statement by the prosecuting attorney that “the defendant is the author of her ruin,” her testimony fully warranted that inference; and, as to the statement that the defendant was the father of her child, while she was not permitted to state that he was the father of her child, her testimony in which she says no other man ever had intercourse with her except the defendant Bobert Pipkin, followed by the evidence that subsequently she gave birth to a child, is in effect stating that he was the father of her child, and had the prosecuting attorney directed his argument along that line, giving the testimony which was admitted without objection, and showing that there is no escape from the conclusion, if that was true, that the defendant was the father of her child and the author of her ruin, manifestly it would have been a legitimate and proper argument; hence it follows that the only complaint against the argument of the prosecuting attorney, and to which any objection could be urged was the fact that he stated that Ellen Bailey had testified that the defendant was the father of her child, which in so many words she did not testify to, but in effect did testify to that fact. Now, while we fully indorse the repeated admonitions by this court to prosecuting officers of the necessity of confining their arguments to the record made in the trial of the cause, yet after a most careful and thorough consideration of the complaint made in this case that the prosecuting attorney improperly stated to the jury that Ellen Bailey had in terms testified that the defendant was the father of her child, we have reached the conclusion that it was not such error as would warrant this court in reversing this judgment. As before indicated in this opinion, while the court did exclude the testimony of Ellen Bailey in the terms used in answer to the question that the defendant was the father of her child, yet there still remains the testimony of Ellen Bailey, which Was not excluded, which in effect, if believed by the jury, did show that the defendant was the father of her child. If her testimony was true that no one else had had sexual intercourse with her but the defendant, and subsequent to such intercourse this child was born, there is no escape from the conclusion that the defendant must have been the father of that child. Again, it may he said that this was a trial before the' jury, and they were fully aware as to what testimony was admitted and the testimony that was excluded. Considering the disclosures of the record altogether, we repeat that the remarks of the prosecuting attorney in his closing argument do not constitute such error as would authorize this court to reverse the judgment.

III.

This brings us to the consideration of the final insistence of learned counsel for appellant, that the evidence developed upon the trial is insufficient to support the verdict of the jury. In the consideration of this contention we have read in detail all of the testimony disclosed by the record, and find that this case is not unlike numerous other cases; that there is simply a conflict of testimony. The prosecuting witness testified clearly and positively to a state of facts, which, if the jury believed, fully warranted the conclusion reached by them. The defendant introduced numerous witnesses who testified that they were along with the prosecuting witness and the defendant on the occasion supposed to he the one when the offense was committed. That they had opportunities for observing the defendant and prosecuting witness and that they failed to see the commission of any acts between the defendant and the prosecuting witness which would constitute the offense charged. In other Words, on the occasion they referred to they did not see the commission of this offense, yet on the other hand the prosecuting witness says that it was committed. It is somewhat significant that upon cross-examination of the witnesses for the defendant they wer*e unable to state the names of any other persons that attended prayer-meeting, nor were they able to state as to where they were, at various other times. They also stated that nothing happened on the occasion supposed to be the time when this offense was committed to especially attract their attention thereto, or to cause their memories to be so charged with reference to the same. The defendant, while he admitted that he accompanied the prosecuting witness to the schoolhouse and back home on the first Sunday evening in June, 1906, denied being with her on the second Sunday in June, as testified to by her, and also denied that he had ever had intercourse with the prosecutrix. There were other witnesses who testified that up to the time of the commission of this alleged offense they had never heard anything against the reputation of the prosecuting witness. This case, like numerous others, simply presents a conflict of testimony, and it is exclusively the province of the jury, where there is substantial testimony establishing the commission of the offense and other testimony conflicting with it, to settle in their deliberations such conflict. Should this court hold that the testimony as disclosed by the record was insufficient to support the verdict, it would in effect usurp the province of the jury and simply say that the jury should not have believed the testimony of the prosecuting witness, but should have been controlled by the testimony of the witnesses introduced by the defendant which tended to show that there was no offense committed. This we are unwilling to do. This cause was tried by the court and jury in the county where the offense was alleged to have been commiited. The court and jury had before them the witnesses, with far better opportunities of observing the witnesses while testifying, determining their credibility and the weight to be attached to their testimony than we have. It. does not follow that, because only one witness testified to the essential facts necessary to constitute the offense and four or five others testified to a state of facts tending to prove that no offense was committed, the jury were bound to believe the testimony of the majority of the witnesses, hut it was their province to observe them and weigh their testimony. In many instances the testimony of one witness is of far greater value than the testimony of a half dozen others.

Our attention is directed by counsel to numerous cases in which the court held that the testimony was insufficient. An examination of those cases will demonstrate that they are unlike the case at bar. In those cases the witnesses were so thoroughly impeached by contradictory statements made outside of court that this court was convinced that the testimony of the witnesses which had been so completely impeached ought not to be made the basis of a judgment of conviction. That is not this case. The prosecuting witness simply details her testimony, testifying that certain acts were committed by.the defendant on certain occasions, and as to the particular date, the prosecuting witness might have been mistaken as to that, but that would not invalidate her entire testimony. On the other hand the witnesses for the defendant testified to a certain state of facts, the tendency of which establishes the innocence of the defendant. As has been repeatedly ruled by this court, the appellate court should not usurp the province of the jury and undertake to retry a case upon the evidence as disclosed by the record. It is the province of the appellate court to review the record, and if there is substantial testimony which will support the verdict it should not be disturbed on the ground that the weight of testimony seems to be in conflict with the conclusion as reached by the jury. In this case,, as .before stated, the jury had the witnesses before them, and doubtless applied all the tests of determining their credibility and weight to be attached to their testimony, and they returned a verdict finding the defendant guilty. The learned judge presiding at the trial approved that verdict, and we see no escape from the conclusion, if the former rulings of this court are to be longer followed, that such verdict should not be disturbed upon the ground that there is a conflict in the testimony and that more witnesses testified for the defendant than did for the State.

We have indicated our views upon the legal propositions disclosed by the record, .and finding no reversible error the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


author: BURGESS, J.

text:
    THE STATE v. ROBERT B. McKINNEY, Appellant.
    Division Two,
    June 8, 1909.
    1. APPEAL: No Bill of Exceptions. Where no bill of exceptions was filed, no matter of exception can be considered by the Supreme Court, on appeal, but the court is necessarily restricted to a consideration of what appears from the record proper.
    2. JURY NOT SWORN. Where it appears that a jury of twelve men were called to try defendant charged with an assault with intent to kill, that they did so, and returned a verdict finding him “guilty of an assault to do great bodily harm, without malice,” and assessing his punishment at a fine of one hundred dollars, but it does not appear from the record that .the jury were sworn, the judgment will be reversed and the cause remanded. The statute specifically requires the jury to be impaneled and sworn before trial; and if the record proper on appeal fails to show that the jury were sworn, the judgment cannot stand.
    Appeal from Texas Circuit Court. — Hon. L. B. Wood-side, Judge.
    Reversed and remanded.

      Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
    The necessity of compliance with the common law requirements as to swearing the jury was recognized in State v. Schoenwald, 31 Mo. 159; State v. Tern-pie, 194 Mo. 241. If the oath is required by the constitutional guaranty referred to, and is a necessary prerequisite to the incorporation of the jury into and as a part of the trial machinery, then a verdict by an unsworn jury would seem to be a nullity, and cases so holding are not lacking.
   BURGESS, J.

The defendant was found guilty “of assault to do great bodily harm, without malice,” and his punishment assessed at a fine of one hundred dollars, under an information filed by the prosecuting attorney of Texas county in the circuit court thereof, charging the defendant with an assault with intent to kill. After unsuccessful motions for new trial and in arrest of judgment, defendant appealed.

The defendant is not represented in this court. As no bill of exceptions was filed, no matter of exception can be passed upon by us, so that in passing upon this appeal we are necessarily restricted to what appears from thé record proper. Prom this it does not appear, as it should, that the jury was sworn to try the cause. It does show that a jury of twelve men were called, to try the case, that said jury did so, and returned a verdict finding the defendant gnilty of an fissault to do great' bodily harm, without malice, and fixing his punishment at a fine of one hundred dollars.

Among the first things required by the statute (See. 2627, R. S. 1899) to be done in the trial of a criminal case before a jury is that the jury be impaneled and sworn. This same question underwent full consideration, and the authorities were extensively reviewed by Gantt, J., in the recent case of State v. Mitchell, 199 Mo. 105, in which it is held that if the record proper in a criminal case fails to show that the jury was sworn to try the cause, the judgment will be reversed and the cause remanded. That case is decisive of the case at bar, and leaves nothing further to be said upon the subject. The judgment is reversed, and the cause remanded.

All concur.


text:
    THE STATE v. RUSSELL DEVORSS, Appellant.
    Division Two,
    June 8, 1909.
    1. CONTINUANCE: Absent Witness: Grounds Not Apparent: Presumption. In passing upon an application for a continuance, upon the ground that a witness whose testimony is alleged to be material is absent, the trial court has a large discretion, the exercise of which in a felony case will not be interfered with by the Supreme Court unless it be made to appear that such discretion has been unwisely exercised. And if it does not appear upon what grounds the application was denied, the presumption will be indulged that the ruling was correct, and that it was based upon good and sufficient reasons.
    2. -: -: For Purpose of Contradiction. Where the facts stated in the application for a continuance to which the absent witness would testify if he were present or if his deposition could be obtained, are merely such as might be used for the purpose of contradicting the prosecuting witness in a carnal knowledge case, and where no foundation for her impeachment is laid therein by calling her attention to the time when and the place where she made the alleged contradictory statements, the application is insufficient.
    3. -: -: Diligente. A statement in the application for a continuance that defendant had “used all the diligence in his power in endeavoring to locate said absent witness” is too general and is insufficient.
    4. CARNAL KNOWLEDGE: Evidence: Criminal Intimacy with Others. In a prosecution of a defendant charged with having carnal knowledge of a girl under fourteen years of age, it is utterly immaterial whether or not any other man about the same time had sexual intercourse with her; and so the. court properly ruled that defendant’s counsel could not oil cross- • examination show that prosecutrix had said that about the time of the alleged rape another man had been intimate with her.

      6. -: Penetration: Intercourse. To fasten guilt upon a defendant charged with carnal knowledge of a female under fourteen years of age, it is not necessary to prove that he ravished her; but it is only necessary to show that she was under fourteen years of age at the time and that he had actual sexual intercourse with her; and penetration may be shown by facts and circumstances in evidence, such as the birth of a child following the unlawful connection. So that where prosecutrix testified that as she was going home from school defendant came out of some bushes on the side of the road, said to her, “Let me have some,” grabbed hold of her, threw her down, pulled up her clothes, lay down on top of her, and had intercourse with her, and that subsequently she gave birth to a child, she could by the use of the word “intercourse” have meant nothing else than that he had actual sexual intercourse with her, and her testimony was sufficient to sustain the verdict of the jury to the effect that there had been actual penetration.
    6. INSTRUCTION: Already Given. It is not error to refuse an instruction covering the same ground covered by one already given.
    7. CONFLICT OF EVIDENCE: Interference. The weight of the evidence, if conflicting, is for the jury; and where there is substantial evidence of defendant’s guilt in a carnal knowledge case, the Supreme Court will not hold it insufficient to convict, although defendant’s testimony is in direct conflict with it.
    Appeal from Holt Circuit Court. — Hon. Win. G. Ellison, Judge.
    Affirmed.

      John W. Stokes and T. C. Dungan for appellant.
    (1) The trial court erred in compelling defendant to go to trial without his witness, Elsey Baker, or his testimony, by deposition. Said application showed due diligence on part of defendant, and that the absent witness was located, and a good probability of procuring his testimony, by deposition, at the next term of the court. Such refusal was not the exercise of a reasonable discretion upon the part of the trial court, in a case of the character and importance of the oné at bar. Nicbols v. Grocer Co., 66 Mo. App. 321; Alt v. Grosclose, 61 Mo. App. 409; Const, of Mo., 1875, art. 2, sec. 22; State v. Anderson, 96 Mo. 241; State v. Burns, 54 Mo. 277; State v. Hesterly, 182 Mo. 29; State v. Dewitt, 132 Mo. 85; State v. Maddox, 117 Mo. 667; State V. Farrow,. 74 Mo. 531. (2) The court erred in excluding evidence offered by defendánt, on cross-examination, of the conversations had and statements made by the prosecutrix with and to Mrs. Peter Baker, the mother of the absent witness, Elsey Baker, concerning prosecutrix’s conduct and relations with Elsey Baker and others, and concerning the acts or innocence of defendant. What prosecutrix said concerning this matter contradictory of her testimony certainly was competent, and would have greatly aided the jury in arriving at a correct and just verdict; such statements of the injured party are always admissible, if made against herself, or her previous statements, and the defendant was entitled to all of her contradictory stories and statements. “The object of judicial investigation is the truth, and the tendency of modern ruling is, under reasonable rules, to exclude nothing that can throw light upon the transaction.” Caughlin v. Hauessler, 50 Mo. 126; State v. Gabriel, 88 Mo. 631; State v. Cooper, 85 Mo. 250; State v. Earnest, 70 Mo. 520; People v. Howard, 76 Pac. 1116. (3) There was a total failure of proof of the existence of the substantial facts and acts necessary to constitute rape. The statement of prosecutrix that defendant had “intercourse” with her does not prove “sexual intercourse,” “carnal knowledge,” “penetration,” or “forcible ravishment,” nor could the existence of any of these elements of rape be reasonably inferred from such statement or from any other fact or facts proven in this case. R. S. 1899, sec. 2633; State v. Patrick, 107' Mo. 147; State v. Dalton, 106 Mo. 463; Hardtke v. State, 67 Wis. 552; People v. Howard, supra.

      Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
    (1) The application for a continuance at the April, 1908, term, was properly overruled. There had been two prior continuances of the case, one on account of the illness of one of defendant’s counsel, and one by reason of the absence of this same Elsey Baker, on whose absence the application in question was based. The court did not abuse its discretion, under all these circumstances, in overruling the application. State v. Woodward, 182 Mo. 419; State v. Lynn, 169 Mo. 672; State v. Alred> 115 Mo. 473; State v. Wilson, 85 Mo. 139; State v. Webster, 152 Mo. 90. The applications filed, owing to the nature of their allegations, practically showed that Baker was a fugitive from justice. Under such circumstances the discretion of the trial court was properly exercised. State v. Day, 100 Mo. 248. The general statement in the application that defendant had “used all the diligence in his power to locate said absent witness” cannot cure the omission to set up facts showing that due diligence had been used'. State v. Webster, 182 Mo. 420. (2) The court was right in excluding the question put to prosecutrix as to her “meeting the Baker boy about the same time” and the offer to show that prosecutrix was intimate with another. Proof of Baker’s guilt of rape under the statute would not exculpate defendant. The age of the victim and the act of the offender fix guilt without regard to the previous history of either party. Sec. 1837, R. S. 1899. (3) 1. Defendant was over fourteen years of age, and therefore beyond the succor of the common law presumption of incapacity. State v. Handy, 4 Harr. (Del.) 567; Wharton’s Crim. Law, sec. 551; McLain’s Crim. Law, sec. 449; 3 Chitty’s Crim. Law, pp. 810, 811. 2. The testimony of the injured party, uncorroborated, is sufficient to support a conviction for rape. State v. Marcks, 140 Mo. 668; State v. Dusenberry, 112 Mo. 292. 3. The evidence in this ease is substantial and direct and sufficient to support the verdict. State v. Matthews, 202 Mo. 147; State v. Wilcox, 111 Mo. 575. 4. No particular form of words on the part of prosecutrix in relating the commission of the offense is necessary. In this case she testified to the completed act. State v. Hodges, 61 N. O. (Phil. L.) 232; Bailey v. Com., 82 Ya. 113; Duck-worth v. State, 63 S. W. 874; State v. Armstrong, 167 Mo. 265. This case is wholly unlike State v. Dalton, 106 Mo. 469.
   BURGESS, J.

Under an information filed by the prosecuting attorney of Holt county, charging the defendant with the crime of carnally knowing one Arminda Yandever, a female child under the age of fourteen years, he was, at the April term, 190*8, of the circuit court of said county, convicted of said offense, and his punishment assessed by the jury at five years in the penitentiary. Motions for a new trial and in arrest of judgment were duly filed by the defendant, and overruled by the court. • It having been admitted at the trial by counsel for the State that the defendant was a minor, under sixteen years of age, at the time of the commission of the alleged offense, the court ordered him committed to the Missouri Training School for Boys for a period of five years. The defendant appealed.

The evidence for the State tended to prove that the prosecuting witness, at the time of the commission of the offense charged, was but- thirteen years of age. She testified that on her way home from school in October, 1906, she was accosted on the public road by defendant, who emerged from some bushes on the roadside; that he made an indecent proposal to her, and then seized and threw her down, and had intercourse with her. She did not tell of her misfortune until the following May, at which, time, according to her mother’s testimony, she “began to show.”

Defendant testified in his own behalf that he was fifteen years of age on the 21st day of August preceding the trial, in April, 1908. He denied having had sexual intercourse with the girl at any time or place.

The first point presented for our consideration by this appeal relates to the action of the court in overruling defendant’s motion for a continuance on account of the absence of a witness, one Elsey Baker, whose testimony was alleged to be material. Defendant insists that the court erred in overruling said motion. It does not appear upon what ground or grounds the motion was overruled, and the presumption must, therefore, be indulged that the ruling was correct, and for good and sufficient reasons, and the burden is upon defendant to prove the contrary. In passing upon a motion of this character the court has a large discretion, the exercise of which will not be interfered with unless it be made to appear that such discretion has been unwisely exercised. [State v. Hesterly, 182 Mo. 16; State v. Dettmer, 124 Mo. 426; State v. Banks, 118 Mo. 117.]

The case had been continued once on account of the illness of one of defendant’s attorneys, and again on account of the absence of this same witness, Baker. Besides, according to the affidavit for continuance, the facts to which the absent witness would testify if present, or if his deposition could be obtained, were merely such as might be used for the purpose of. contradicting the prosecuting witness, although no foundation for her impeachment had been laid by calling her attention to the time and place when and where she 'made the alleged contradictory statements. This should have been done, in order that she might not be taken by surprise and be unprepared to meet the issue. The prosecuting witness in this case is not a party to the prosecution, and has no pecuniary or personal interest

in it, and she, like any other witness for the State, conld only be impeached by first laying a foundation therefor. [State v. Fitzgerald, 130 Mo. 407.] Moreover, the statement in the affidavit that the defendant had “used all the diligence in his power in endeavoring to locate said absent witness” is too general and insufficient. It should have stated all the facts, in order that the court might be in a position to judge as to whether due diligence was used.

It is next contended for the defendant that “the court erred in excluding evidence offered by defendant, on cross-examination, of the conversations had and statements made by the prosecutrix, with and to Mrs. Peter Baker, the mother of the absent witness, Elsey Baker, concerning prosecutrix’s conduct and relations with Elsey Baker and others, and' concerning the acts or innocence of defendant. ’ ’

This, evidently, has reference to a question put to the prosecuting witness, upon her cross-examination, and which, upon objection by counsel for the State, the court did not permit her to answer. The question was: “I will get you to state, Minda, if about the time you speak of meeting Russell in the road there, if you didn’t meet a Baker boy down there, in the brush, near the same place.” Upon objection made, counsel for defendant explained that his object was to show that the prosecuting witness, about the timé of the commission of the alleged offense, was intimate with Baker. As stated, the court sustained the State’s objection.

It is utterly immaterial, under the statute, whether Baker or any other man had been guilty of raping the prosecuting witness. Such fact would in no way justify or excuse the conduct of the defendant. The child being under fourteen years of age, his act was a crime under the statute (Sec. 1837, R. S. 1899) regardless of whether she had been similarly treated by others.

It is insisted that there was a failure of proof in that there was no proof of penetration, in the absence of which there can be no rape.

Section 2633, Revised Statutes 1899, provides that “proof of actual penetration into the body shall be sufficient to sustain an indictment for rape.” The prosecuting witness testified that she was going home from school when the defendant came out from some bushes on the side of the road and said to her, “Let me have some;” that he grabbed hold of her, threw her down, pulled up her clothes, lay down on top of her, and had intercourse with her.

The question, then, is, was this evidence sufficient to show sexual penetration? We think so, and the jury so found, or, at least, such is the effect of their verdict. To fasten guilt upon the defendant, it was not necessary to prove that he forcibly ravished Arminda Vandever, if she was under fourteen years of age at the time; but if he had sexual intercourse with her, as her testimony shows he. had, that was sufficient. That penetration may be shown by facts and circumstances in evidence, if sufficient, there can be no question. [People v. Howard, 76 Pac. 1116.] For instance, if a child be born of unlawful connection, and in a prosecution against its father for rape, the female testify that the child was born of that connection, penetration would be shown by that fact. Now, if the prosecuting witness had only testified that the defendant had intercourse with her, and her testimony stopped at that, we concede there would be failure of proof as to penetration, but when we consider the facts testified to by her we can come to no other conclusion than that sexual penetration actually occurred. She meant nothing else by the use of the word “intercourse” and her testimony could have reference to nothing else. In Hardtke v. State, 67 Wis. 558, relied upon by the defendant, the evidence not only failed to show that the defendant in that case was guilty, but really showed that he was not. Not so with the case at bar, in which, if the testimony of the prosecuting witness be taken narratively, and not disconnectedly, and the word “intercourse” be taken and viewed in part with all the facts testified to by her, it must be conceded that the jury might well have come to the conclusion that sexual penetration had actually occurred, notwithstanding the testimony of the defendant, that he had never had sexual intercourse with her. The weight of the testimony was for the jury. In State v. Marcks, 140 Mo. 656, it is said: “In a rape case, if the defendant testifies and denies the rape, and the prosecution stands alone, unsupported and uncorroborated, as in this case, there is no such equipoise of oath against each as will overthrow a conviction, and the prosecution will not on that account fail for ‘want of sufficient evidence.” The same rule is announced in State v. Dusenberry, 112 Mo. 277. We are unwilling’ to say that there was not sufficient evidence to take the case to the jury, or that the verdict was unauthorized by the evidence.

A further contention is that the court erred in refusing instruction number two asked by the defendant. This instruction is a substantial rescript of instruction number one, given in behalf of the defendant, and no error was committed in refusing it. It is not error to refuse an instruction covering the same ground as that covered by one already given.

Defendant asked, and the court refused to give, an instruction in the nature of a demurrer to the evidence, and in so doing the defendant insists the court erred. For reasons already given, we are of opinion that there was no error in refusing this instruction. The evidence, it is true, was conflicting, but its weight was for the consideration of the jury, who believed the story of the girl rather than that of the boy. The verdict was approved by the court, who heard the witnesses testify, and doubtless knew a number of the jury, and under the circumstances we are not inclined to interfere, and must decline to do so.

The judgment is affirmed.

All concur.