State v. Hughes

WALKER, P. J. —

Appellant was convicted in the circuit court of Atchison county for a violation of section 4471, Revised Statutes 1909, as amended by Laws 1913, p. 218, and his punishment assessed at six years ’ imprisonment in the penitentiary, where he is now confined. From the judgment rendered herein he appeals to this court.

The information, omitting the formal parts, name of prosecutrix, and the signature of the prosecuting attorney, is as follows: “that J. A. Hughes, on or about the 14th day of July, 1913, at the county of Atchison, in the State of Missouri, in and upon one--, a female child under the age of fifteen years, to-wit, of the age of twelve years, unlawfully and feloniously did make an assault, and her, the said---, then and there unlawfully and feloniously did carnally know and abuse; contrary to the form of the statute in such cases- made and provided and against the peace and dignity of the State.”

Two different assaults by appellant on the child were proved, one May 26, 1913, and the other July 14, 1913. On motion of appellant, the State was required to designate the offense on which it relied for conviction, and the prosecuting attorney elected to stand on that of May 26-, 1913. The chiM- was in her eleventh year at the time of the commission of the alleged offenses by appellant; the evidence in regard to same was confined to her testimony. The defense introduced no witnesses except as to the child’s character for truth and veracity. It will serve no helpful purpose either to morals or jurisprudence to dwell further upon the facts.

Appellant urges as grounds of error: First, that the information is insufficient; second, that the manner *269 in which the State was required to make an election was improper; third, that certain remarks of the prosecuting attorney were prejudicial; fourth, that the evidence was insufficient. We set forth at length hisi contention in regard to the information as same was submitted, by his counsel at the trial, as follows:

“The information is insufficient in law and does not charge any offense against the defendant in this, that the information charges that the offense was committed by having carnal knowledge of (name of prosecutrix), a female child under the age of fifteen years and the proof and election by the State fixes the offense as of the exact date of May 26, 1913, at which said date there was no law in this State making it an of-fense, or rape, to have carnal knowledge- of a female child under the age of fifteen years.”

, „ .. I. The information charges that the assault was committed “in and upon” (here naming her) “a female child under the age of fifteen years, to-wit, of the age of twelve years.”

The gravamen of the offense consists, under the original section, in carnally knowing a female child under the age of fourteen years, and under the amendment in a like - knowledge of a female child under the age of fifteen years. While, therefore, it is necessary in a criminal charge under this statute, where no exact age is stated, that an allegation be made that the child is within the statutory limit, where the age is stated and it is within such limit, then an allegation in addition thereto as to the general limit is a mere redundancy. The information in this case would, therefore, have been sufficient if the allegation under the age of fifteen years had been omitted. If its omission was authorized, then its addition worked no injury. A precedent sustaining this conclusion is to be found in State v. Griffin, 249 Mo. 624 . The constitutional requirement that the information shall enable *270 the accused to clearly understand the nature and cause of the accusation against him is fully met in this case. Appellant’s contention in this regard is without merit.

Election II. Appellant complains of the action of the trial court in not requiring the State to elect upon which offense it would rely for a conviction, immediately after the opening statement of the prosecuting attorney,- during which he made reference to each offense.

The general rule in regard to an election as to offenses is that it should he made as soon as it can be done intelligently, the application of the rule depending necessarily upon the development of the facts in each particular case. This being true, the time of election must he left largely to the discretion of the trial court; where it does not appear that this has been abused to the injury of the accused, he. has no ground for complaint. Rulings in regard hereto will he found in- the following recent cases: State v. Henderson, 243 Mo. l. c. 508; State v. Hurley, 242 Mo. 452, 459 ; State v. Palmberg, 199 Mo. 233, 243 .

In State v. Henderson, supra, Fekriss, J., in his usual clear and concise manner, thus states the rule: “In a prosecution for statutory rape upon a female under fourteen years of age, each act of intercourse is a separate felony and an election is proper at the earliest time when it is apparent that the State can make an intelligent election. ’ ’ In that case there was no election and the court held that it was not necessary, as the defendant could be convicted of the first offense only, because then only is the prosecutrix of chaste character, citing State v. Schenk, 238 Mo. 429 , and State v. McMahon, 234 Mo. 611 .

While, the rule as announced in the Henderson case could very well be applied here, as the facts are parallel, it is not necessary. Here there was an election and the State stood upon the first offense. There *271 being no showing that the appellant was prejudiced by the trial court not requiring an election until the close of the State’s case, we rule this contention against the appellant.

counseif °f III. The prosecuting attorney in his argument to the jury said that “there was not a single word coming-from a witness in the witness chair, contraddcting anything that the little girl testified to.” Counsel for the defense asked the court to reprimand the prosecuting attorney for this remark, which the court declined to do. Appellant assigns this as error on the ground that the remark constitutes such a reference to the defendant’s failure to testify as is prohibited by section 5243, Eevised Statutes 1909. We are not impressed with the reasonableness of appellant’s interpretation of this remark. Measured either by its tenor or its purport it can refer only to witnesses who have testified, or to the testimony before the court. Any other construction, in our opinion, does violence to the plain meaning of the words employed and is not authorized.

The Snyder case, 182 Mo. 462 , is not an authority contrary to the conclusion reached here. In that case in which the defendant had not testified, a lawyer of counsel for the State, repeatedly stated in his argument to the jury that “no witness had been called to contradict the prosecuting witness,” and amplified this statement so as to clearly indicate that he referred to the defendant. Unfortunately in the court’s reprimands, such allusions were also made to the defendant’s failure to testify as to emphasize the counsel’s reference. Properly, this court held this to be error sufficient to justify a reversal. No such facts esist in the instant case. Only the remark complained of was made and the trial court, no doubt recognizing, as we do, that only by a strained construction can it be said to refer to the accused, declined to rule it out. *272 While the trial court should carefully protect the rights of an accused, an'dl see to it that he has a fair and an impartial trial, it is not fair by a strained construction of words to charge counsel for the State with purposely and indirectly commenting upon the failure of the defendant to testify, nor should section 5243, supra, be given such a narrow construction that counsel for the State may not in argument, if evidence of the State is uncontradicted, so allude to it. This much was said in substance by this court in State v. Ruck, 194 Mo. 416, 441 , in which Gantt, J., who had written the Snyder case, distinguishes the latter case and limits the general application which its language would otherwise indicate.

Fairly considered, therefore, there is nothing in the remark of the prosecuting attorney upon which to base prejudicial error.

Sufficiency of Evidence. IY. Only the prosecutrix testified as to the assault. No facts or circumstances rendered her testimony uncertain; full credibility having been given it by the jury, we will not . usurp its province. Although it is not required that the testimony of a prosecutrix in a case of this character should be corroborated (State v. Stackhouse, 242 Mo. 444 ), it must, as was well said by Brown, J., in State v. Tevis, 234 Mo. l. c. 284, not be of a contradictory nature, but convincing, and leave the mind of the court free from doubt. Such was the testimony in this cause. We, therefore, find no merit in the contention that there was a lack of evidence to authorize the verdict.

We have on account of the serious nature of this offsense gone carefully over the record. Appellant had a fair trial, andl the judgment of the circuit court should be affirmed. It is so ordered.

Brown and Faris, JJ., concur.