State v. Hunter

GANTT, P. J.

The indictment in this case was preferred by the grand jary of Cass coanty on Janaary 3, 1900. The defendant was tried at the September term, 1900, convicted, and sentenced to the penitentiary for two years. The indictment charged a violation of section 1838, Eevised Statates 1899, in that defendant being over sixteen years of age did have carnal knowledge of one Emma Schrock, an anmarried female of previoas chaste character at the age of sixteen years.

Jadge Jarrott, the regalar jadge of the Cass Circait Coart, was disqaalified by an affidavit of prejadice, and Jadge Longan of the Pettis circait was called to try the caase, and presided at the trial. On this appeal defendant assigns nameroas groands for reversal, all of which we have considered.

I. The first goes to the constitationality of the law which he is charged to have violated, to-wit, section 1838, Eevised Statates 1899, which was first enacted April 8, 1895. This act has met the approval of this *439 court in State v. Knock, 142 Mo. 515 , and State v. Hall, 164 Mo. 528 , and its constitutionality finally affirmed in State v. Harney, 168 Mo. 167 , by this court in banc. Those decisions must be regarded as settling the validity of the law.

II. The indictment is assailed because it charges that defendant at the county of Cass in this State “did then and there unlawfully and feloniously have capaal knowledge of and abuse” the prosecutrix instead of alleging that he “did carnally know and abuse” her. There is no merit in the distinction sought to be made. The indictment is in the language of the statute, and the two forms are the same in meaning and significance.

III. Counsel make the point in their brief that the defendant was denied twenty-four hours in which to plead after having been furnished a list of the panel. It is a sufficient answer to this contention to say that no exception was saved to the ruling of the court denying this request, and, hence, it is not before us for decision, but lest this ruling should be construed as intimating that, the law requires that the defendant shall have twenty-four hours after the service of a copy of the indictment before he shall be arraigned,, we say now, once for all, that there is no statute making any such requirement except in capital cases. [Sections 2558 and 2559, R. S. 1899.]

IY. Judge Longan’s right to preside and try the cause was not challenged at the time he was called in, nor when he took his seat in response to the call of Judge Jarrott, and was raised for the first time in the motion in arrest of judgment. But there is no merit in the contention that he had no right to preside in the case. Judge Jarrott was disqualified by the filing of the affidavit supported by the two compurgators, and as the prosecuting attorney and defendant made no selection of another attorney at law to try the case, Judge Jarrott’s right to call in the judge of another circuit, under section 2597, Revised Statutes 1899, is too plain for discussion.

*440 Since the amendment of section 2595 in 1895 (Laws 1895, p. 162) the only provision for the election of a special judge is that contained in this section and is restricted to an election by the defendant and the prosecuting' attorney and it is presumed that no such offer was made, and for that "reason Judge Jarrott called in Judge Longan.

The circuit court is a court of general jurisdiction, and every presumption will be and is indulged in support of its proceedings.

Being the judge of a court of general jurisdiction it was not at all necessary that the record should recite that- in his opinion no suitable person could or would be elected special judge to try said cause, but when he requested Judge Longan to preside, it is presumed that he either exercised his indisputable right under the Constitution to request another judge to hold a part of his term, without assigning grounds for so doing, or that his action was referable to section 2595, Revised Statutes 1899, because the prosecuting attorney and defendant had-not selected an attorney whose selection he would approve, but in either case it was wholly unnecessary to recite his reasons on the record. [State v. Gilmore, 110 Mo. 1 ; State v. Ramble, 108 Mo. 500 ; State ex rel. v. Wear, 129 Mo. 625 .]

Y. The verdict was amply sustained by the evidence. The previous chaste character of the prosecutrix was established in the most satisfactory manner by the State and no effort was made by the defendant to impeach it. She was shown to have been only about sixteen years old when the crime was committed. The sexual act was proven by her evidence, and the fact that she was absent from the home of her parents all that night was clearly established. Her father searched the town for her, but was unable to find her, and she was seen in the immediate neighborhood of defendant’s office next morning about 8 o’clock, hurrying towards her home. The evidence of defendant’s own witness placed him in the stairway of his office about the time' the prosecutrix testifies he invited her up there. The *441 jury were the judges of the credibility of the witnesses, and they believed her evidence and corroboratory testimony.

VI. The only remaining point is that on or about the 25th of October, after the commission of the offense on the 6th day of October, the State offered evidence tending to prove that defendant endeavored to meet the prosecutrix at her father’s residence. When it was offered the objection was made that it was immaterial and the court after a statement of the purpose of the proof offered, excluded it. The objection now urged was not made in the circuit court, and hence is not available, but the court excluded it anyway and no prejudice was shown by the making of the offer.

The rule of court as to passing cases on the first call to the foot of the docket has no relevancy to a case where the judge was called to try a special case on a day set especially for the trial of that case. Judge Longan had nothing to do with the other cases on the regular docket and was there to try this ease. There is no merit in the contention that defendant had a right on that day to have his case passed until all the other cases were called hy Judge Jarrott.

After a careful reading of the whole evidence and an examination of the instructions, we discover no error and the judgment is affirmed.

All concur.