State v. Tevis

BROWN, J. — Defendant was convicted of incest in the circuit court of Henry county. From a judgment fixing his punishment at three years in the penitentiary, he appeals. The information in this ease contains two counts; in the first, defendant is charged with committing rape upon his daughter, Bessie Tevis; and in the second, with incest, by having sexual intercourse with her. The State’s evidence tends to prove that defendant is a section foreman on a railroad, and at the time he is charged with committing this crime, resided with his family, consisting of his wife, his son aged eighteen, a daughter aged sixteen (the prosecutrix), another daughter aged ten, and an infant, in the town of Windsor, in Henry county. That about four o’clock one morning in March, 1907, defendant’s wife having gone to the depot to bid a friend good bye, defendant went to the bed where his daughters were sleeping, and by threats, compelled prosecutrix to have sexual intercourse with him. She (the prosecutrix) testified that defendant had been forcing her to have sexual intercourse with him during a period of several years, whenever her mother happened to be away from home at night. The defendant having threatened her life if she informed anyone of his misconduct, she did not tell anyone of his crime until April, 1908, when she confided the matter to her mother. Within a week or ten days after the prosecutrix informed her mother, they caused the defendant’s arrest: The mother was not sworn, but the prosecutrix testified quite fully concerning the alleged crime, and to the facts surrounding it. — 282 — On cross-examination she admitted that her father allowed her to associate with other yonng people; to mate trips to near-by towns, that she frequently disobeyed him, and that in December, 1907, she forged her father’s name to an order for a railroad pass; and having thus procured transportation, went to the town of Ray, near Kansas City, and remained twelve days; that in January, 1908’, she made another trip* to Kansas City, and visited friends several days. This last trip was made with her father’s consent and in company with her mother. That in April, 1908-, defendant gave her ten dollars to go to a store a mile or so away and purchase groceries for the family, and that she and her mother used this money to go to the county seat and prefer this charge. After defendant’s arrest, two physicians examined the prosecutrix and found her sexual organ enlarged, but did not express any opinion as to the probable cause of 'that .condition. The conviction in this case rests entirely upon the evidence of prosecutrix. The jury returned a verdict of not guilty of the charge of rape, but found defendant guilty of incest. Such additional points in the evidence as are necessary to a full understanding of our opinion will be given in connection with our rulings on the issues tendered. The defendant assigns the following alleged errors : The evidence showed that if any crime was committed it was rape; and that the conviction for incest cannot stand; that the court erred in refusing an instruction limiting the effect of the evidence that the defendant had been convicted for petit larceny; that the court erred in excusing jurors because they were opposed to capital punishment; and that upon the whole case the court should have directed an acquittal. — 283 — OPINION. The Attorney-General contends that there is nothing bnt the record proper before us — that the bill of exceptions was not filed in time. Defendant was convicted at the January term, 1909, of the Henry Circuit Court, and was granted until the second day of the next April term to file his bill of exceptions. In the mean time the Legislature changed the date of holding the spring term of said court from April to May; so that there was no April term held; and the bill of exceptions was filed on the second day of the May term, 1909. We rule that the bill was filed in time to bring the exceptions therein contained properly before this co art for review. We must overrule defendant’s first assignment. Incest is a lower crime than rape. When the same completed act constitutes a violation of more than one law, the State may prosecute for any crime which can be carved out of such unlawful act. [Wharton’s Criminal Law (10 Ed.) , sec. 27; State v. Smith, 190 Mo. l. c. 720.] There is no impropriety about joining the charge of rape and incest where they both relate to the same transaction. [State v. Goodale, 210 Mo. 275.] The court did not err in refusing defendant’s instruction defining the effect to be given to evidence of defendant’s conviction of petit larceny, because by an-instruction given of its own motion the court had properly informed the jury that defendant’s prior convic.tion could only be considered as affecting his credibility as a witness, and should not be deemed any evidence of his guilt of' the crime for which he was then on trial. There was likewise no error on the part of the court in excusing jurors who were opposed to capital punishment, because one count of' the indictment charged the offense of rape, a conviction upon which might authorize the infliction of capital punishment.- — 284 — 'We have read and re-read the record in this case with much care, and while it is with great reluctance that we find it necessary to overturn the verdict of the jury that heard the evidence and had an opportunity to observe the conduct of the witnesses on' the stand, this is one of those rare cases in which it becomes our duty to do so. A conviction in cases of either incest or rape may be had upon the uncorroborated evidence of the prosecutrix, but when the evidence of such prosecutrix is of a contradictory nature, or when applied to the admitted facts in the case, her testimony is not convincing, but leaves the mind of the court clouded with doubts, she must be corroborated, or the judgment .cannot be sustained. [State v. Goodale, 210 Mo. 275, l. c. 290; State v. Brown, 209 Mo. 413.] In this case the prosecutrix testifies that the incestuous conduct of her. father was continued over a period of more than five years; that she protested against the commission of this abominable and unnatural crime and only refrained from informing her mother through fear of her father; but her own admissions on cross-examination are that she disobeyed her father at pleasure; and there is not one word in the record that he ever chastised her or gave her cause to be afraid of him. Yet she waited thirteen months after the last act of sexual intercourse is alleged to have been committed before informing' her mother. It is very improbable that the defendant could continue to commit incest with his daughter for more than five years and the mother have no knowledge thereof. Such things are possible, but in a high degree improbable. The fact that prosecutrix was a disobedient child and that she forged.her father’s name to an order for a railroad pass whereby she obtained transportation and went to Jackson county, where she remained twelve days without his consent, renders nugatory that part of her testimony wherein- she says she acted through — 285 — fear in concealing from her mother the alleged crime of her father. The son Harry, eighteen years old, seems to have been emancipated by his father. At least he had'left the parental roof a few weeks before April, 1908, and was out in the State of Washington when his father was arrested. This son immediately returned home and after talking with the prosecutrix and making some investigations regarding the alleged crime, took up the fight for his father. He testified that his sister was disobedient, but that he had never seen any indication of improper relations between her and the defendant. We can see no reason why he should espouse the cause of his father if he found any grounds for believing that his sister had been wronged. He was under no restraint of any kind, and in a good position to correctly guage the veracity of prosecutrix. His evidence is entitled to much weight. The defendant went upon the stand and denied the evidence of the prosecutrix in detail. The prosecuting attorney did not attempt to cross-examine him, except to elicit the fact that he had pleaded guilty to petit larceny in the theft of a barrel of linseed oil some seven years before — a peculiar theft for a man working on a section with no facilities for concealing or disposing of such property. The defendant having testified in.his own behalf, the prosecution tried to impeach his reputation, but no witness was produced who could testify that his reputation for morality was bad, or who had ever heard of him committing an immoral act except the one for which he was then on trial. The overwhelming preponderance of the evidence is that defendant is a truthful man. Even the constable who lived just across the street from defendant at the time of the alleged crime, and who appears to have been unfriendly to the defendant, admitted on cross-examination that he had never heard anyone question defendant’s veracity. A witness who boarded at de — 286 — fendant’s bouse testified tbat be saw no evidence of improper relations .between defendant and prosecutrix. Some of bis nearest neighbors gave like testimony. Defendant’s ten-year-old daughter was not sworn as a witness. Mrs. Reiser, a restaurant-keeper ■ in a near-by town, testified tbat after defendant’s arrest, sbe asked the prosecutrix why she bad her father locked up, and received the reply tbat sbe bad told her troubles to a Holiness preacher at Kansas City, who advised her tbat unless sbe bad her father arrested sbe could never go to Heaven. Tbat prosecutrix also said tbat after they got rid of her father her mother could marry a richer man and they would not have to work. . After a careful survey of the whole case, we find that the evidence is not sufficient to sustain the conviction, and we therefore reverse the judgment and remand the cause. If upon a retrial the evidence of guilt is not stronger than at the first trial, the circuit court should direct an acquittal. Kennish, P. Jv and Ferriss, J., concur.