Opinion
No. 40200.
October 13, 1947.
1. CRIMINAL LAW: Incest: Information Sufficient. The information was not fatally defective because it charged defendant with incest by adultery without also charging that he was a married man. The gist of the offense is an act of sexual intercourse with a daughter. But use of the term "adultery" in the charge made it proper to establish that defendant was married at the time.
2. CRIMINAL LAW: Evidence: Constitutional Law: Statement of Unavailable Witness Not Admissible. In view of Sec. 18, Art. I, 1945 constitution, providing that the accused shall have the right to meet the witnesses against him face to face, the signed statement of a witness who refused to testify on the ground of self-incrimination is not admissible under the rule announced in civil cases.
3. CRIMINAL LAW: Corpus Delicti Not Established: Confession Insufficient. Defendant's confession was not corroborated by any independent competent proof of the corpus delicti, so the record is devoid of independent probative evidence of any crime.
4. CRIMINAL LAW: Scope of Cross-Examination of Defendant and his Wife. The cross-examination of a defendant or his wife should be limited to matters referred to in the examination in chief.
Appeal from Cole Circuit Court. — Hon. Sam C. Blair, Judge.
REVERSED AND REMANDED.
William A. Seibel for appellant.
(1) The information charging defendant with incest by adultery but failing to allege that defendant was at the time a married man, is fatally defective. 31 C.J., sec. 23, p. 380. (2) The court erred in denying defendant his statutory rights and protection by permitting the prosecuting attorney, over the objections of defendant, to place wife of defendant on the witness stand as a witness for the State. Sec. 4081, R.S. 1939; State v. Davit, 125 S.W.2d 47; citing State v. Richetti, 119 S.W.2d 330. (3) The court erred in denying to defendant the full weight of the constitutional provision giving him the right to meet the witnesses against him face to face when the court admitted in evidence the statement of Juanita Gorden. Missouri Constitution 1945, Art. I, Sec. 18(a); State v. Gallina, 178 S.W.2d 433; and cases cited. (4) The court erred in denying to defendant his right to cross-examine all witnesses called by the State, by admitting in evidence the statement of Juanita Gorden. (Defendant was not present when the statement was made nor when it was signed, nor had he prior or subsequent thereto an opportunity of cross-examination.) Sec. 1891, R.S. 1939; State v. Martin, 229 Mo. l.c. 638; State v. O'Connor, 105 Mo. l.c. 125. (5) The court erred in admitting the statement or extrajudicial confession of Juanita Gorden, a statement not under oath, when the ultimate purpose of any trial upon any issue of fact is applied. Bartlett v. Kansas City Pub. Serv. Co., 160 S.W.2d l.c. 742. (6) The court erred in admitting the confession of the defendant without separate and independent proof of the corpus delicti. As appears from the authorities above, the statement or extrajudicial confession of Juanita Gorden was improperly admitted (as the separate and independent proof of the corpus delicti) and no other proof thereof having been offered, it must follow that the confession of defendant was erroneously admitted. State v. Lyle, 182 S.W.2d 530, 353 Mo. 386; State v. Hawkins, 165 S.W.2d 644; State v. Craig, 43 S.W.2d 413, 328 Mo. 938; State v. Willoby, 34 S.W.2d 7; Fotie v. United States, 137 F.2d 831; Gulotta v. United States, 113 F.2d 683; Tingle v. United States, 38 F.2d 573; 31 C.J., sec. 46, p. 387. (7) The court erred in permitting the prosecuting attorney to cross-examine Mrs. June Gorden, wife of defendant, with reference to several highly prejudicial matters, not within the subject or scope of the examination on direct. Sec. 4081, R.S. 1939; State v. West, 161 S.W.2d 966; State v. Revard, 106 S.W.2d l.c. 910; State v. Nicholson, 87 S.W.2d 425; State v. Pierson, 56 S.W.2d 120. (8) The court erred in permitting the prosecuting attorney to examine defendant with reference to numerous subjects not within the scope of the subjects covered by the direct examination such matters being of a highly prejudicial nature. Sec. 4081, R.S. 1939; State v. Nicholson, Ibid; State v. Pierson, Ibid.
J.E. Taylor, Attorney General, and Gordon P. Weir, Assistant Attorney General, for respondent.
(1) The information is sufficient in form and substance and fully apprises the appellant of the crime charged. Sec. 4694, R.S. 1939; State v. Bullinger, 54 Mo. 142; State v. Johnson, 93 Mo. 317; State v. Addcock, 65 Mo. 590. (2) The court did not err in admitting in evidence the statement or confession of June Gorden, without separate and independent proof of the corpus delicti. 22 C.J.S., sec. 654, pp. 1001, 1002; People v. Furlong, 79 N.E. 978, 187 N.Y. 198, 20 N.Y. Cr. 485; United States v. Lee Hee, 60 F.2d 924; State v. Tharp, 334 Mo. 46, 64 S.W.2d 249; State v. Johnson, 316 Mo. 86, 289 S.W. 847; State v. Meyer, 293 Mo. 108, 238 S.W. 457; 22 C.J.S., sec. 819, p. 1439; sec. 822, pp. 1441, 1442, sec. 823, p. 1455, sec. 839, pp. 1471, 1472; In re Thomasson's Estate, 347 Mo. 748, 148 S.W.2d 757; 31 C.J.S., sec. 239, p. 988, sec. 273, pp. 1027, 1028, sec. 278, p. 1030, sec. 772, p. 1023; State v. Foley, 247 Mo. 607, 153 S.W. 1010. (3) The court did not err in permitting the state to introduce in evidence the so-called extrajudicial statement of Juanita Gorden, without separate proof of corpus delicti. 22 C.J.S., sec. 654, pp. 1001, 1002; 31 C.J.S., sec. 239, p. 988; State v. Easterly, 189 S.W.2d 284; In re Thomasson's Estate, 347 Mo. 748, 148 S.W.2d 757. (4) The court did not err in permitting the prosecuting attorney to examine defendant with reference to subjects not within the scope of subjects on direct examination. State v. Ivy, 192 S.W. 733; State v. Foley, 247 Mo. 607, 153 S.W. 1010. (5) The court did not err in permitting the prosecuting attorney to cross-examine Mrs. June Gorden, wife of defendant, with reference to subjects not within the scope of the examination in chief. State v. Ivy, 192 S.W. 733; State v. Foley, 247 Mo. 607, 153 S.W. 1010.
Charged with the commission of the crime of incest, tried and found guilty in the circuit court of Cole county, Missouri, and sentenced to two years' imprisonment in the penitentiary, June Gorden prosecutes this appeal. His chief complaint is that certain evidence was erroneously admitted, stressing an extrajudicial statement made by the prosecutrix and a purported confession of the appellant.
Appellant's point that the information was fatally defective because it charged appellant with incest by adultery without also charging that appellant at the time was a married man, citing 31 C.J. 380, sec. 23, is not well taken. Section 4649, R.S. 1939, provides, so far as material: "Persons within the following degrees of consanguinity, towit: Parents and children . . . who shall commit adultery or fornication with each other, . . . shall be adjudged guilty of incest . . ." The information followed the language of the statute. This is sufficient for a statutory offense. The gist of the instant offense is an act of sexual intercourse with a daughter. Whether an accused is married or single at the time of the act is not within the statutory definition and an allegation in respect thereto would be surplusage. Use of the term "adultery" in the charge makes it proper to establish that the accused was married at the time. State v. Brown, 209 Mo. 413, 419, 107 S.W. 1068, 1070; State v. Bullinger, 54 Mo. 142, 143; State v. Harris, 283 Mo. 99, 107, 222 S.W. 420, 422; 42 C.J.S. 510, sec. 12 b.
The State offered the prosecutrix as a witness. She answered a few preliminary questions but refused to answer any questions respecting the charge against appellant, standing upon her constitutional rights against self-incrimination. Thereafter, the State had the chief of police of Jefferson City to identify a signed but unsworn statement of the prosecutrix and, over the objections of appellant's counsel, succeeded in having the statement admitted in evidence on the theory the testimony of the prosecutrix was not available to the State; that the statement was the next best evidence and that, having been voluntarily made, it constituted substantive probative evidence of appellant's guilt. The State cites certain civil authorities to sustain the [715] admissibility of the prosecutrix's statement. We are not concerned here with an accused's extrajudicial confession, or a statement constituting a part of the res gestae or of a co-conspirator during the execution of the conspiracy, but the extrajudicial statement of a witness against the accused. The statement is written hearsay. Its probative value as evidence of appellant's guilt depends not alone on the veracity of the witness, but, if made, also upon the veracity of the person making the statement. If inquiry whether the statement were made had become material, its admission was relevant on that issue but not as proof establishing the facts therein narrated. (Consult 22 C.J.S. p. 1228, secs. 718, 719, 746 and 747.) The Bill of Rights of our Constitution (Art. 1, Sec. 18, Mo. Const. 1945, Laws 1945, p. 5) provides: "That in criminal prosecutions the accused shall have the right . . . to meet the witnesses against him face to face . . ." This provision assures to one accused of crime the rights of confrontation and of cross-examination under oath, and excludes extrajudicial statement of witnesses as probative evidence of a defendant's guilt in the circumstances of the instant case. State v. Johnson, 334 Mo. 10, 19(II), 64 S.W.2d 655, 659[4, 5]; State v. Kinnamon, 314 Mo. 662, 672(III), 285 S.W. 62, 64[8]; State v. Gallina, 352 Mo. 557, 178 S.W.2d 433; State v. Condit, 307 Mo. 393, 408(I), 270 S.W. 286, 290[2]; State v. Duncan, 116 Mo. 288, 311(h), 22 S.W. 699, 705(h); 23 C.J.S. 360, secs. 999, 1000, 1002; 14 Am. Jur. 888, sec. 176; 20 Am. Jur. 400, secs. 451, 452; 1 Wharton, Cr. Evi. (11th Ed.) 672, secs. 430, 431, 435, 437, 438, 443; Annotations, 129 Am. St. Rep. 23, 39; 33 A.L.R. 826. Consult 25 West's Mo. Dig., Rape 20, sec. 48(2).
31 C.J.S. 988, sec. 239. n. 25; Sutter v. Easterly, 354 Mo. 282, 294[3, 4], 189 S.W.2d 284, 288[5]; Re Thomasson's Estate, 347 Mo. 748, 758[6], 148 S.W.2d 757, 763[11, 12].
An extrajudicial written statement, signed by appellant and confessing the offense, was admitted in evidence over the objection of the appellant but upon the condition and with the assurance of the prosecuting attorney to the court that independent proof of the corpus delicti would be adduced. We have just ruled the statement of the prosecutrix was inadmissible under the record made. This causes the record to be devoid of independent probative evidence of any offense. We have considered, as did the trial court, that a confession should be corroborated by independent proof of the corpus delicti before it constitutes evidence of guilt. The logical procedure is to establish first the corpus delicti and thereafter the accused's connection therewith. State v. Bennett (Mo.), 6 S.W.2d 881, 882[2]; State v. Adams, 308 Mo. 664, 670(II), 274 S.W. 21, 23[4]; State v. German, 54 Mo. 526; State v. Bowman, 294 Mo. 245, 258(I), 243 S.W. 110, 114[1, 2] reviewing cases; 23 C.J.S. p. 182, sec. 916 b, p. 443, secs. 1046, 1047; 22 C.J.S. 1248, sec. 730 b; 20 Am. Jur, p. 422, sec. 485, p. 1083, secs. 1230, 1233; Annotations, 68 L.R.A. 47, 75, 79; 28 L.R.A. (N.S.) 536; 78 Am. Dec. 252, 253; 10 Ann. Cas. 913.
With the statement that the cross-examination of a defendant on trial or of his wife should be limited to matters referred to in the examination in chief (Sec. 4081, R.S. 1939), the foregoing disposes of all the issues presented in appellant's brief.
The judgment is reversed and the cause is remanded for error in the admission of evidence. Westhues and Barrett, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.