State v. Kyle

168 S.W. 681, 259 Mo. 401, 1914 Mo. LEXIS 86

• Court: Supreme Court of Missouri
• Decided: June 23, 1914
• Status: Published

Opinion

ROY, C.

Defiling Female. Defendant was convicted of defiling his stepdaughter, Edna Cole, and sentenced to two years in the penitentiary.. He was fifty years old at the time of the trial. He went to Caruthersville in December, 1911, and began boarding with Mrs. Cole, who had been divorced from her second husband, by whom she had three children, Edna, aged fourteen, Olga, aged nine or ten, ¿nd Chester, aged eight years. She had a son, Kim Wynn, by a former husband. Kim was married and lived near Ms mother, who, with Ms help, had bought a home, a house of four rooms. Prior to her marriage to defendant, she did washing for an income. On March 9, 1912, the defendant and. Mrs. Cole were married and continued to live in her house. He and his wife slept in one room, and the three cMldren in the adjoining room. There was a door between. Mr. Smith, a brother of Mrs. Kyle, slept in the same room with the cMldren two nights in a week for three or four weeks sometime between the marriage of defendant and the 15th of May, on which latter date Edna complained to her half brother, Kim Wynn, of defendant’s mistreatment of her. Wynn and his wife caused Edna to be examined by Dr. Hudgins on May 16, 1912. He found her genital organs swollen and inflamed and the hymen broken, indicating according to his opinion that she had been carnally known witMn the past month.

Defendant and his wife both testified that defendant did not in any way attempt to control Edna. He testified that she lived there as one of his family. Nellie Wynn, the wife of Kim Wynn, testified that defendant “bossed” Edna and the other children.

Edna testified that about two weeks after defendant’s marriage, he came into her room in the night and had intercourse with her; that she threatened to tell her mamma, and he said he didn’t care if she did; thát she then threatened to tell the marshal, and that he said if she did he would kill her; that he continued to have intercourse with her, in all about a dozen times, once when her grandma Sparks was sleeping' in the same room. Defendant testified denying the charge.

Bill Jones testified for the defendant that he was nineteen years of age and had lived close to the home of Mrs. Cole and Edna; that about four months before defendant’s marriage the witness had sexual intercourse with Edna in a corn crib, when she had come for corn shucks as he was shucking corn. Thereupon the following occurred:

“Judge Gossom: Your Honor, I want a bench warrant for this gentleman.

“Mr. Collins: Now, we object to that, getting up before this jury and calling for a bench warrant because it is done only for the purpose of prejudicing this jury.

“By the Court: The court will not issue any bench warrant now, Judge.”

The next day Judge Gossom for the State recalled the witness Jones and the following occurred: “Q. Your name is Bill Jones? A. Yes, sir. Q. Are you the same Bill Jones that testified in this case yesterday? A. Yes, sir.. Q. I understand that you want to testify again in this matter this morning? A. Yes, sir. Q. "Well, you may state now what you want to say in regard to this matter, just turn and tell the jury? A. I want to tell that I were persuaded to say what I said yesterday. Q. Just state to the jury whether what you said in regard to having intercourse with this little girl was true or not true? A. I never had intercourse with this girl at all; never done nothing with her. Q. And your statement yesterday that you did have was not true? A. Not true. Q. Tell the jury how you come to make this statement? A. Well, they come around after me and told me that I would have to tell it or else I would have to go over the road anyhow. Q. Who told you that? A. Will Kyle. Q. The defendant here? A. Yes, sir.”

Jones testified that he first told Hal Jordan that he (witness) had had sexual intercourse with Edna. Jordan, for the defense, testified that Jones told bim that he (Jones) had had sexual intercourse with Edna in the corn crib, and that she thought she was in a family way, and that he married to keep from marrying her. He further testified that such conversation occurred in the winter before defendant was married; that Edna’s reputation for chastity was bad and that he and Jones were talking about her.

Edna testified that she carried shucks once or twice frpm the crib, but denied that Bill Jones was there at the time, and stated that her little brother was with her.

Defendant testified that Hal Jordan told him while he was in jail about what Jones had told him, and that he had never made any threats against Jones to get him to testify.

N. Y. Lovitt testified that Kim Wynn told him about a month before defendant was arrested that they would separate defendant and his wife one way or another.

The wife of defendant testified that the door between her room and the room where the children slept was sometimes left open at night and sometimes closed, according to the weather; and that Edna did not make any outcry and never complained against defendant. On her cross-examination the following occurred: “Q. Well, you don’t know anything about whether your husband had sexual intercourse with your little girl, or not, do you? A. No, but I know he didn’t, because it looked funny to me that I wouldn’t know it because I was there all the time.”

She testified that her son Kim Wynn and Edna were angry because of her marriage with defendant.

Among the instructions the court gave the following.:

“2. You are instructed that if you believe from the evidence in this case beyond a reasonable doubt that the said Edna Cole lived with the defendant and his wife as one of the defendant’s family, then she was confided to defendant, and was in his care and protection, within the meaning of the indictment, and it is not necessary that she should have been confided to Mm by any legal proceedings of a court in order to constitute her in his care and protection.

“5. The court instructs the jury that the defendant is a competent witness in his own behalf, and his testimony is to be weighed by the same rules that govern you in weighing testimony of other witnesses; but in weighing his testimony you may take into consideration the fact that he is the defendant on trial in the case and his interest in the result of such trial. And also the wife of defendant is a competent witness for defendant but you may in passing upon her testimony take into consideration the fact that she is the wife of the defendant and her interest in the result of the trial.

“6. The court instructs the jury in this cause that even if you believe from the evidence that the prosecuting witness, Edna Cole, had sexual intercourse with one Bill Jones, that fact would be no defense in this cause and that such act should be considered by you only for the purpose of affecting the credibility of Edna Cole as a witness and for no other purpose.

“7. The court instructs the jury that although the jury may believe from the evidence that the general reputation of Edna Cole for chastity and virtue was bad, her want of chastity constituted no justification for the defendant having sexual intercourse with her, if you believe beyond' a reasonable doubt he did so, but if the jury believe from the evidence that her general reputation for chastity and virtue in the neighborhood in which she lived is bad, that fact may be considered by the jury in determimng the credit to be attached to her testimony as a witness.”

The court refused the following instruction “B” asked by defendant:

“The court instructs the jury that evidence showing, that defendant married the mother of the prosecuting witness, Edna Cole, and the said Edna continued to live with the family after the marriage of defendant to the mother of the said prosecuting witness, is not sufficient to show that Edna Cole was the ward of defendant, or was under his care, control or trust. The jury must find that defendant did actually assume control of the said Edna Cole as her stepfather, acting as such, before you can find the defendant guilty in this case.”

As a ground of his motion for a new trial the defendant alleged the discovery of new evidence as set out in the affidavits of the witnesses thereto, which affidavits were, by the motion, made a part thereof. The motion was verified by the affidavit of the defendant and contained the following:

“That defendant and his counsel used due diligence upon his trial by making diligent inquiry in the neighborhood of the alleged offense of all persons by whom it could be expected to establish any evidence in his behalf, but did not learn from the witness making said affidavit, nor from any other person or persons or source that the persons making said affidavits were the repositories of the evidence their affidavits disclose, and that owing to the nature of the case the repositories of such evidence withheld the same until after defendant had been tried and convicted; that the evidence disclosed by said affidavits is not cumulative and is very material and would likely change the result and verdict of the jury if a new trial be granted, and that said newly discovered evidence is not merely to impeach prosecutrix, but will also account for the destruction of the hymen of the prosecutrix, and the physical condition in which she was found by the witness Dr. M. H. Hudgins.”

The affidavit of Pete Paul, a half-brother of Edna, stated that he caught Edna and her half-brother Him Wynn in the act of sexual intercourse at her mother’s house, in her mother’s absence, soon after the mother’s marriage to defendant, and that lie had never told any one because she was his sister.

The affidavit of Susie Conley stated that Edna told her' that the defendant had never bothered her, and that Kim Wynn was the only one who ever touched her and that he got her to swear that defendant did it.

The affidavit of Clara Woods stated that Edna told her that Kyle had never mistreated her and that she charged him with it at the instance of Kim Wynn.

Construction of sec. 4479: stepfather. L We are of the opinion that there was no error in instruction numbered 2 given for the State, and no error refusing the second instruction asked by defendant. The fact that defendant was the stepfather of Edna and that she was living in the same house with her mother and defendant as a member of defendant’s family constituted that “confidential relation” which brings him within the statute. In State v. Sibley, 131 Mo. l. c. 525, this court held that the statute was for the protection of females under eighteen years of age who come under the custody, protection and control of stepfathers. It did not pass on the question as to what facts constituted such control. In State v. Mapper, 141 Mo. l. c. 406, it was claimed that the girl had never been confided to the defendant in that case but to his wife. This court said: “While the rights of the wife as they existed at common law have been greatly enlarged by courts and statutory enactments, and the rights of the husband correspondingly diminished, he has not become entirely a nonentity, and is yet regarded as the head of the family with power to control the same.”

In State v. Oakes, 202 Mo. 86, it was held that a school teacher who after school hours visited his pupil and carnally knew her, was within the statute. The Nibarger case, 255 Mo. 289, so recently decided by this court, shows no disposition to lessen the beneficent force of the statute.

We certainly concede that a stepfather occupies no such confidential relation to a stepdaughter who lives elsewhere than in his house, and whom he does not assume to control or protect. It will be noticed that the statute does not require that any control shall be exercised. It inflicts a penalty on him who defiles a female who has been committed to his “care and protection.”

Weight of Testimony: Interest in Trial. II.Instruction numbered 5- in regard to the testimony of defendant and his wife is in accordance with the approved usage in such cases. [State v. Newcomb, 220 Mo. l. c. 66; State v. Napper, 141 Mo. l. c. 407.]

Prior Sexual Acts. III.Instruction numbered 6 is erroneous in limiting too narrowly the effect to be given to the evidence as to her intercourse with Bill Jones.' Jones’s testimony, as first given, was that he had intercourse with her four months before defendant’s marriage. That would place it in November, 1911, about six months before she was examined by the physician. It would have accounted for the destruction of the hymen as shown by the physician’s testimony. While the unchastity of the female is no defense, yet it certainly is a fact to be considered by the jury in determining whether her physical condition was caused by defendant or by some other person.

CoíTnseíf °f Newiy Discovered V1 e ce‘ IV.The act of counsel for the State in calling for a bench warrant for Bill Jones while he was on the stand just after he had testified to his connection with the prosecutrix was very prejudicial to the defendant. There, was no request by defendant that tbe court should censure the State’s counsel, so that the trial court cannot be placed in error for what occurred.' Still in determining the general merits of this appeal we take such conduct of State’s counsel into consideration. The next day counsel for the State put Jones back on the stand and he not only denied his former testimony as to such intercourse, but went further and testified that his former testimony was given falsely because the defendant had threatened him. That, too, in face of the fact that he admitted telling Hal Jordan of such intercourse. Jordan corroborated such statement. The defendant testified that it was Hal Jordan who told him about Jones’s statement. The facts have a strong tendency to show that Jones’s first statement was true and that his retraction was produced by the action of State’s counsel. The newly discovered evidence was partly cumulative and partly impeaching evidence merely, but the affidavit of Pete Paul goes to the vital question as- to who caused the condition in which the physician found her. W-e do not hold that the conduct of the State’s counsel in reference to the witness Jones is, standing alone, reversible error. We do not pass on that question. We do hold that such incident taken in connection with the erroneous instruction above discussed, and in connection with the newly discovered evidence, satisfies us that the defendant should be given a new trial. This court has recently said in State v. Horton, 247 Mo. l. c. 666, that in such cases prosecuting officers should “avoid injecting into the minds of the jury any matter which is not proper for their consideration, or which would add to the prejudice which the charge itself has produced in their minds.” We will add that he should also avoid the appearance of coercing defendant’s witness into retracting evidence given in his behalf. Counsel for the State doubtless acted in good faith and under a feeling of indignation that the witness had so testified, but that fact does not mitigate the destructive effect of Ms action on the rights of the defendant.

The judgment is reversed and the cause remanded for a new trial.

Williams, C., concurs.

PER CURIAM. — The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All the judges concur; Walker, J., in result.-