State v. McClain

Burgess, J.

At the January term, 1896, of the circuit court of Barton county the defendant was in- *312 dieted by the grand jury of said county for defiling one Flora Ooggin, a female under the age of eighteen years, who had theretofore been confided to his custody and protection. The venue was on his application changed to the circuit court of Vernon county, where a trial was had at the April term, 1896, of said court, resulting in his conviction, and the fixing of his punishment at imprisonment in the penitentiary at two and one half years. The case is before us for review upon his appeal.

Flora Ooggin was fifteen years of age on the twenty-eighth day of October, 1895. She was a poor country girl having lived upon a farm in Dallas county all her life from the time she was a few months old. At the time she disappeared from her home in that county with defendant she was living at home with her widowed mother and a brother about eighteen years of age. The nearest schoolhouse from where she lived was about two and one half miles.

Defendant had formerly lived in Dallas county, and married a lady who was at the time living in that county. He thereafter moved to Lamar in Barton county, where he was living with his wife and child at the time of the alleged offense. He became acquainted with Flora Coggin at the house of a neighbor of her mother whom he was.visiting some three years before the trial, but nothing unusual occurred between them .at that time. Afterward, he again visited the- neighborhood, and called at the house of Mrs. Ooggin, told the family of his nice home in Lamar, of his baby, and wanted her mother to let Flora go home with him, stay at his house and go to school. To this arrangement her mother consented, but after she had started with defendant her mother followed, overtook them, and took her back against both her protest and that of defendant.

*313 After that Flora wrote defendant one or two letters asking him to come for her, and in compliance therewith defendant appeared near her mother’s house early one morning in the early part of the month of September, 1895, waved and called to her to cometo him, “and said he was ready for her to come to Lamar, and for her to get ready if she wanted to go.” He took her to his buggy near by, where he had it concealed, and they started across the country to Lamar. Her mother was not at home at the time and did not know that she was going. Defendant promised Flora to board, clothe, send her to school, and take care of her until she was married, if she would stay with his wife and help her about the house.

The night after they started to Lamar they traveled all night in the buggy, and some time during the night while on the road in Polk county, defendant had criminal connection with her. They reached defendant’s home in Lamar about dark the next evening, where she remained about six weeks, during which time defendant had intercourse with her from two to three times per week. She became pregnant and defendant undertook to produce an abortion on her by administering to her spirits of turpentine.

About the fourteenth of October, 1895, defendant, his family and Flora, left Lamar, he sending Flora to her grandparents in Hunt county, Texas, from whose place she subsequently returned to her mother’s home in Dallas county.

On the sixteenth day of November, 1895, he was apprehended by the sheriff of Barton county, Missouri, at Fort Smith, Arkansas, and while aboard a train of cars en route from that place to said county, and while the train was running at a rapid rate of speed, he jumped from it, and attempted to make his escape, but *314 was subsequently recaptured and returned to Barton county.

Upon the part of defendant there was evidence tending to show that Flora Ooggin was of unchaste character at the time of the commission ‘of the alleged offense.

After the evidence was all in, defendant asked an instruction in the nature of a demurrer thereto which was refused by the court, and defendant saved his exceptions.

It is claimed by defendant that the instruction in the nature of a demurrer to the evidence should have been given. This contention has for its predicate the fact that the prosecuting witness testified upon cross-examination that the first act of illicit intercourse between her and the defendant occurred in the county of Polk, and not in the county of Barton where the indictment was preferred.

The indictment charged the offense to have been committed in Barton county, and the evidence showed very clearly that defendant, on different occasions during the four to six weeks that the prosecuting witness was under his care at his house in that county, had criminal connection with her as often as from two to three times a week. The fact that he had theretofore, while m route from her home to his in another county through which they passed, and while she was under his care and protection, had carnal knowledge of her, is no sufficient reason, we think, why he should not be punished for the offense committed in Barton county. Therefore there was no error committed in refusing the instruction in the nature of a demurrer to the evidence, nor the instruction asked by defendant presenting the same theory of the case.

Under section 3487, Revised Statutes 1889, it is made a felony for any person, to whose care or protec *315 tion any female under the age of eighteen years has been confided, to defile her by carnally Mowing her while she remains in his care, custody, or employment, and the fact that defendant showed by the cross-examination of the state’s witness that he had on a former occasion been guilty of a similar offense, although with her and in a different county from that in' which the offense was committed for which he was under indictment and on trial, was no justification or excuse. State v. Batch, 136 Mo. 103 . Upon the other hand, it tended strongly to show that his intention in taking the care and custody of her in the first place was to defile her, and was not for a legitimate or laudible purpose.

The evidence upon the part of the state showed that Flora Ooggin had been confided to, and was in fact under the care and protection of, defendant at the time of the commission of the offense, and it makes no difference that the arrangement was made with her personally. State v. Terry, 106 Mo. 209 ; State v. Hill, 134 Mo. 663 . Nor does it lie in defendant’s mouth to say that his victim was not of contractual age at the time she confided herself to his care and protection. He can not shield himself from punishment for his wrongdoing under any such defense.

There was no error in refusing instruction I) asked by defendant, as the same instruction, in effect, was given by the court on the part of the state. Besides, the refused instruction was objectionable in that it was directed at any juror who might have a reasonable doubt of defendant’s guilt, and not to the jury as a body.

After defendant jumped from the train, and made his escape, and was subsequently recaptured at Roger’s, Arkansas, by the marshal of that city, and was in his custody and that of an assistant by the name of Hop-wood, he inquired of them the charge for which he was *316 arrested, and was told that it was rape, to which he replied, “I am not wanted for rape, it was for seducing a young girl in Missouri.” Counsel for defendant moved to exclude the testimony upon the following grounds only: “Because what defendant said was after he was arrested and in charge of the officers; and for the reason that he was informed that the charge against him was rape.”

After the officers having him under arrest made the further statement that no promise was made or any inducements of any kind offered defendant to make the statement, but that it was entirely free and voluntary upon his part, the court overruled the objection, and in this defendant claims error was committed. As there was no legal ground upon which to bottom the motion it was properly overruled. State v. Patterson, 73 Mo. 695 ; State v. Phelps, 74 Mo. 128 ; State v. Hopkirk, 84 Mo. 278 ; State v. Robinson, 117 Mo. 649 .

All the instructions given upon the part of the state are criticised by defendant, but no substantial objection is found to exist against any of them. They seem to be in harmony with the adjudications of this court with respect to offenses committed under the same statute, and in so far as we have been able to discover, free from just criticism.

A final contention is that the defendant was not present in court, but was confined in jail when his motions for new trial and in arrest were overruled, and when the judgment was rendered and sentence passed upon him.

Whatever may be the facts outside of the record with regard to this contention, the record shows that defendant was not only out on bail, but that he was present at the time the verdict was received by the court, and does not show that he was in jail at any time thereafter.

*317 It does not affirmatively show, however, that he was present when final judgment was rendered on the verdict, as required by section 4237, Revised Statutes 1889. That section provides that, “for the purpose of judgment, if the conviction be for an offense punishable by imprisonment, * * * the defendant must be personally present.”

The statute seems to be mandatory, but as no error was committed during the trial of the cause up to the time of the rendition of the judgment, which relates to a part of the case which comes after verdict, the cause will be remanded upon that ground only, and the trial court directed to enter judgment and sentence upon the verdict rendered, having the prisoner before the court at the time. Jewell v. Commonwealth, 10 Harris, 94; McCue v. Commonwealth, 78 Pa. St. 185; State v. Snyder, 98 Mo. 555 .

All of this division concur.