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and it only remains for us to affirm the judgment of the circuit court, and direct that the sentence of the law be executed.
SHERWOOD and BURGESS, JJ., concur.
STATE v. KAVANAUGH. (Supreme Court of Missouri, Division No. 2.
Dec. 3, 1895.) SEDUCTION — STATUTORY OFFENSE – EVIDENCE
TIME OF TRIAL. 1. Evidence that defendant's sister-in-law, an orphan child, was brought to defendant's house by another brother-in-law, at whose house she had been living, to remain while his wife was confined, shows that the child was "confided" to defendant's "care and protection" (Rev. St. 1889, § 3487), so as to warrant his conviction for defiling her.
2. Evidence that defendant committed an abortion on the child is admissible.
3. The failure to notify defendant of the calling of the special term at which he was tried, as required by statute, is not ground for reversal, defendant having made no objection to proceeding with the trial.
Appeal from circuit court, Harrison county; Paris C. Stepp, Judge.
Edward Kavanaugh was convicted of a crime, and appeals. Affirmed.
Sallee & Goodman, for appellant. R. F. Walker, Atty. Gen., and Morton Jourdan, for the State.
She became pregnant, and he administered medicines to her, and used a catheter to produce an abortion. She helped do the housework while she was at defendant's house.
Various errors are assigned but they are all subordinate to the question whether the foregoing facts constitute such a confiding of the girl to defendant's care and protection as to bring the case within the letter and spirit of section 3487, which provides that, "if any guardian of any female under the age of eighteen years, or any other person to whose care or protection any such female shall have been confided shall defile her by carnally knowing her while she remains in his care, custody or employment," he shall be guilty of a felony. This section has been before this court for construction quite often. The section is nearly coeval with the state. In Rev. St. 1855, art. 8, § 9 (the act concerning crimes and punishments), it appears in these words: "If any guardian of any white female under the age of eighteen years, or of any other person to whose care or protection any such female shall have been confided, shall defile her by carnally knowing her he shall be punished," etc. That section was construed by this court in State v. Acuff, 6 Mo. 54, and it was held that the statute included not only guardians, but all other persons to whose care or protection any such female shall have been confided, and the word "of," following the word "or," preceding the words "any other person,” must be rejected to render the section intelligible; Judge Tompkins saying: "Surely there can be no reason why it is not as criminal and as infamous in several other persons to violate such a trust as it is for a guardian to do it.” The statute was afterwards amended by striking out the word "white,” and as thus amended (1 Wag. St. p. 500, $ 9) came before this court for construction again in State v. Arnold, 55 Mo. 90, and, without noticing or overruling State v. Acuff, it was held that where the married sister of a girl under 18 years of age requested her father to let the girl go and help her husband plant corn for a day, and the girl went, and during the day the husband defiled her, it was not such a confiding of her to his care or protection as the statute contemplated; that the person to whom she was confided must either be her guardian or stand in some attitude in which a peculiar or confidential trust was reposed. In State v. Woolaver, 77 Mo. 103, the section again came under review. In that case the evidence simply showed that the defendant was the stepfather of the prosecutrix, Anne Murphy, and that she lived with him, and during the time she made her home with his family he defiled her. There was no other evidence of confiding her to his care. This court affirmed a conviction in the case, and assumed without discussion that the stepdaughter was confided to the care and protection of the defendant in that case under those circumstances. In State v. Young, 99 Mo. 284, 12 S. W. 642, the prosecutrix was à
GANTT, P. J. The defendant was indicted in the Harrison circuit court at the May term, 1893, for defiling his sister-in-law, a young girl 15 years old, and was convicted at a special term of said court, in July, 1894, from which he appeals. The facts are few, The girl's father and mother were dead, and her estate was so meager that her guardian obtained homes for her where she could earn her living by doing part of the household work. When she was not thus employed, she made her home with her two brothers-inlaw, William McGowan and the defendant, Kavanaugh. Her guardian, Mr. H. B. Alden, testified that defendant told him the girls (meaning the prosecutrix and another younger sister) were both welcome to come and see his (defendant's) wife whenever they wanted to, and that he understood the prosecutrix was making her home with defendant when not employed. Mr. McGowan and his wife testified that the two girls were staying with them until the 14th of December, 1892. On that day. Mrs. McGowan was confined, and Mr. McGowan took the two girls to defendant's house, to stay during her confinement, and got the defendant's wife to go home with him to attend his wife. During the night of December 14th the defendant took the prosecutrix from her bed, and carried her to his own, and had carnal connection with her. Subsequently he had intercourse with her at intervals during the ensuing four or five months, when she was visiting in his house.
girl of 16 years. A sister of the defendant's protection flows from the assumed relation. wife employed her to go to defendant's house Snowden v. State, 12 Tex. App. 105. So this to do kitchen work. The father of the girl quasi relation may exist between the child saw defendant several weeks after the girl and some person other than the stepfather went to work, and told him she was not or near relative, and with similar legal constrong, and not to work her too hard; to sequences reciprocally. Schouler, Dom. Rel. which he answered she would be treated just (5th Ed.) 8 273. like one of the family. It was said by this With these principles in view, we hold that court that the relation thus assumed by the the prosecutrix, under the facts of this case, defendant was akin to that of a natural was confided to the care and protection of guardian, and the conviction was sustained. her brother-in-law, the defendant; that it was In that case this court cited with evident ap- not essential to show a specific verbal conproval State v. Jones, 16 Kan. 608, which fiding of her to his care or protection by exarose under a statute the same as ours prior press agreement with her guardian. While to its amendment in the Revision of 1879. In the statute requires that she should have been State v. Jones, supra, the defendant took the confided to his care or protection, it nowhere female home with him, ostensibly for his wife indicates that the confiding shall be evidenced to see whether she would employ her as a by an express arrangement. We think when servant. When he and the girl reached his she was taken to his house by her brother-inhouse, his wife was gone, and the girl re- law to stay during her sister's confinement, mained that night. He slept with her that and was received by him into his home by night, and defiled her, and took her home the the tacit and clearly implied assent of her next day. The supreme court of Kansas said: lawful guardian, and left in his charge as the "We think that the trust reposed in the de- head of his family, she was confided to his fendant by the father and mother of the girl care within the contemplation both of the letin confiding her to his care for the purpose ter and spirit of the statute. This trust was that he might take her to his home so that evidenced just as the great mass of human his wife could employ her as a hired girl in transactions are, to wit, by the acts of the his own family was such a trust as is fairly parties. In all such cases the parties are precontemplated by the statute. It was very sumed to have made those stipulations which much like placing the girl in the defendant's as honest, fair, and just men they ought to family, and reposing the confidence of her have made. From the conduct, situation, and care and protection in the defendant himself relation of the parties, we think there was as the head of the family.” In State v. Ter- sufficient evidence to authorize the jury to ry, 106 Mo. 209, 17 S. W. 288, this division find the girl was confided to the care and proheld that the employment of a female under tection of defendant. The circumstances of 18 years of age as a domestic servant in the her being taken to his house, the relation she family of defendant created such a confiding
bore to him, her tender age, are susceptible of to his care or protection as to bring it within no other reasonable interpretation than that, the statute, and that it was not necessary that
while she remained under his roof, she was the contract or confiding should be by the confided by her sister and brother-in-law, Mcintervention of a third person; Thomas, J.,
Gowan, to his care and protection. It was saying, “The question is not how the relation her duty to conform to the regulations of his was formed, but did it in fact exist ?" In family and his plain duty to afford her proState v. Sibley (Mo.) 31 S. W. 1033, the ma- tection. If necessary, we would say he bore jority of this division concurred in holding a peculiar relation of trust towards her. We that the relation of trust was created by a are not unmindful that men are not to be stepdaughter living in her stepfather's family made subject to criminal laws by implication, as a recognized member thereof, without fur- and that only those transactions are covered ther proof of confiding her to his care or by criminal statute which fall within both protection. To that ruling we still adhere. their spirit and letter; but we are disposed The doctrine established by the great weight to so construe this statute as to promote the of authority is that, while a stepfather is not purpose and object of the legislature by bound to receive his stepchildren into his ascribing that meaning to its words which, in family, and provide for them, yet, if he does our opinion, best harmonizes with the context, receive them, and holds them out to the world and we do not violate the rule of strict conas members of his family, he stands in loco struction by giving to the words of the statparentis, and incurs the same liability with ute their full meaning, and thus effectuate respect to them as he is under to his own what we believe was the intention of the legchildren, and, this relation being established, islature in adopting them. U. S. v. Hartwell, the reciprocal rights and duties attach. They 6 Wall. 385. are under his protection Academy v. Bobb, 2. There was no error in permitting the 52 Mo. 357; Smith v. Rogers, 24 Kan. 140. prosecutrix to testify that defendant gave her And so it has been held by the court of last medicines and used a catheter to produce an resort in our sister state of Texas that a quasi abortion. It was evidence tending directly parental relation may be established by a to show he was the cause of the mischief, minor sister living with her brother, and in and it was not inadmissible because it tended such a case the right of correction as well as to prove him guilty of another offense. State v. Sibley (Mo.) 31 S. W. 1033; State v. Green- Zach. J. Mitchell, for appellant. R. F. wade, 72 Mo. 298; State v. Young, 99 Mo. Walker, Atty. Gen., and Morton Jourdan, 284, 12 S. W. 612.
for the State. 3. The contention that the court was without jurisdiction because defendant was not SHERWOOD,J. On change of venue from notified, as required by statute, of the calling St. Louis county circuit court, the defendant of a special term, is not tenable. A failure to was tried in the Franklin circuit court upon notify defendant might have afforded him an indictment the material portions of which good ground for a continuance, but there is are as follows: "That Joseph Turner and nothing in the statute that makes the juris- Ruben Troller, on the second day of July, A. diction of the court dependent upon that no- D. one thousand eight hundred and ninetytice, or attaches any such consequence to a three, at the county of St. Louis, in the state failure to give it. At most it is directory. of Missouri, did then and there feloniously No objection was made to proceeding with the and burglariously break into and enter a certrial, no effort made to obtain the 10-days tain chicken house building, the property, time, and no exception saved, and no possible then, of William C. Price, by forcibly pushinjury has been suggested as resulting from ing and bursting open an outer window of the failure to give the notice. The statute is the same, and with the intent thereby then as beneficial to defendant as the state. It in- and there feloniously and burglariously to sures him that speedy public trial guarantied take, steal, and carry away certain property, by the constitution.
consisting of divers live chickens and valu4. There was no error in the instructions. ble things, which were then and there being They were based upon the evidence, and did kept and deposited in said building, and then not assume any controverted fact in the case. and there did unlawfully and burglariously The judgment is affirmed.
take, steal, and carry away, from and out
of said building, of the said valuable things, BURGESS, J., concurs. SHERWOOD, J., the property, then, of the said William C. does not concur.
Price, divers live chickens, in number and of value to these jurors unknown. And the ju
rors aforesaid, upon their oath aforesaid, do STATE v. SCHUCHMANN.
further present and charge that, before the (Supreme Court of Missouri, Division No. 2.
said felonious burglary and larceny was comDec. 3, 1895.)
mitted, as aforesaid, one Edward SchuchBILL OF EXCEPTIONS— EXTENSION OF TIME FOR mann did, in the said county, and on the said FILING – INDICTMENT – FATAL Defects - CON
day, unlawfully, feloniously, and burglariSTRUCTION OF STATUTES-DoctriNE OF EJUSDEM GENERIS - BURGLARI – PRINCIPAL AND ACCES
ously advise, incite, procure, and aid the said SORY.
persons, Joseph Turner and Ruben Troller, 1. The trial court cannot extend the time to commit the said crimes and felony,granted a party to file his bill of exceptions, aft- against the peace and dignity of the state. er it has expired. 2. An indictment based on Rev. St. 1889, $
R. Lee Mudd, Pros. Atty. of St. Louis Co., 3526, which makes it burglary to break and
The trial resulted in the conviction of enter any building "within the curtilage of a the defendant, his punishment being assessdwelling house,” is fatally defective if it fails
ed at imprisonment in the penitentiary for to contain the descriptive words quoted. 3. “Other building," as used in Rev. St.
the term of three years. 1889, $ 3526, making it burglary for any person
1. On the 16th of March the time granted to break and enter any "shop, store, booth, tent, defendant in which to file his bill of excepwarehouse or other building,” etc., means a building of like kind with those enumerated, and
tions having expired, the trial judge was does not, therefore, embrace a "chicken house powerless, on the 19th of March, to extend, building."
State v. Hecox, 83 Mo. 532, over- by his order, the time for filing the bill of exruled. Gantt, P. J., dissenting. 4. Fatal defects in an indictment may be
ceptions, as we have over and over again deconsidered, though raised for the first time on
2. The section of the statute upon which 5. Under Rer. St. 1889, $ 3944, providing the foregoing indictment is framed is as folthat every person who shall be a principal in the second degree in the commission of any
lows: "Every person who shall be convictfelony, or who shall be an accessory before the ed of breaking and entering: First, any fact, shall, on conviction, be adjudged guilty of building within the curtilage of a dwelling the offense in the same degree as a principal in the first degree, the indictment may either al- house, but not forming a part thereof; or, lege the matter according to the fact, or charge second, any shop, store, booth, tent, wareboth the principal and the accessory as princi- house or other building or any boat or vespals in the first degree. 6. Since an affidavit for change of venue
sel, or any railroad car in which there shall can only be preserved in a bill of exceptions, the
be at the time some human being, or any sufficiency of such affidavit cannot be consider- goods, wares, merchandise or other valuable ed on appeal, in the absence of such bill.
thing kept or deposited, with intent to steal Appeal from circuit court, Franklin coun- or commit any felony therein, shall, on conty; Rudolph Hirzel, Judge.
viction be adjudged guilty of burglary in the Edward Schuchmann was convicted of the second degree.” Rev. St. 1889, 3526. Uncrime of burglary in the second degree, and der this section, the indictment, if based on appeals. Reversed.
the first clause thereof, must charge that the
building in which the burglary was commit-, of like denomination with those specifically ted was "within the curtilage of the dwelling mentioned; Bailey, J., remarking that, if all house.” Without such averment the indict- persons were meant, there was no need of ment would be fatally defective, because of the specific enumeration. So, in Ex parte not containing the descriptive words the stat- Hill, 3 Car. & P. 225, under the common-law ute contains. If the indictment be based on rule that, where general words follow parthe second clause of the section, then it is ticular and specific words, the former must bad, because the rule as to matters ejusdem be confined to things of the same kind, it generis applies,-that good rule of construc- was ruled that a "bull" was not included tion which requires that, "when a particular under the words "other cattle," as used in a class is spoken of, and general words follow, statute which made it indictable for any perthe class first mentioned is to be taken as the son to "wantonly or cruelly beat, abuse and most comprehensive, and the general words ill-treat any horse, mare, gelding, mule, ass, treated as referring to matters ejusdem gen- ox, cow, heifer, steer, sheep or other cattle," eris with that class.” Broom, Leg. Max. -the court saying: "Horse, mare, gelding, (6th Ed.) 625. Here the term "chicken house are one class; ox, cow, heifer and steer are building' is not of the same kind or class another; and * * * the bull is not inas those previously mentioned, and, there- cluded in this act.” Sandiman v. Breach, 7 fore, cannot fall within the definition of the Barn. & C. 96, was an action of assumpsit, term "other building." State v. Bryant, 90 brought to recover the expense of hiring a Mo. 534, 2 S. W. 836, and cases cited. See, postchaise, the defendant having failed to also, State v. Seibert (Mo. Sup.) 27 S. W., loc. convey plaintiff in his stagecoach, as he had cit. 626. The indictment is, therefore, bad, contracted to do. For the defense it was under either clause of the section. This contended that the contract was illegal, beview of the matter is not in accord with cause it was to be performed on the Sabbath. State v. Hecox, 83 Mo. 532, where a bur- Lord Tenterden did not approve this conglary in a "granary" was committed, and tention, and, in delivering the unanimous there was no allegation that it was within opinion of the court of queen's bench, said: the curtilage; but, for reasons already giv- "It was objected that the plaintiff in this case en, we do not regard that case as sound law, could not recover, because the contract, for and consequently will not follow it. More- the breach of which the action was brought, over, the statute is both penal and criminal, was to have been performed on the Sabbath and, therefore, to be strictly construed; con- day, and that it could not legally be perstrued strictly as to those portions which are formed on that day. But, upon looking into against defendants, but liberally construed the statutes (3 Car. I. c. 1, and 29 Car. II. c. 7) in those which are in their favor,-that is, upon which the objection was founded, we for their ease and exemption. No person is are of the opinion that this case does not to be made subject to such statutes by im- come within them. * * * By the first of plication, and when doubts arise concerning these, 3 Car. I. c. 1, it was enacted that 'no their interpretation, such doubts are to weigh carrier, with any horse, nor wagonman, with only in favor of the accused. Bish. St. any wagon, nor cartman, with any cart, nor Crimes (2d Ed.) $$ 193, 194, 227. The defects wainman, with any wain, nor drover, with mentioned in the indictment, being fatal in any cattle, shall, by themselves or any other, their character, may be raised and consid- travel on the Lord's day'; and by 29 Car. ered for the first time in this court, and of II. c. 7, that 'no tradesman, artificer, workour own motion. State v. Meyers, 99 Mo., man, laborer, or other person or persons, loc. cit. 112, 12 S. W.,516, and cases cited. shall do or exercise any worldly labor, busi
When writing the above, I had supposed ness or work of their ordinary callings, upon the doctrine so well settled, in regard to the the Lord's day.' It was contended that, unproper construction to be given to the mean- der the words other person or persons,' the ing of general words which follow those drivers of stagecoaches are included. But, which designate or create a particular class where general words follow particular ones, or classes of persons or things, that I thought the rule is to construe them as applicable to it needless to do but little more than barely persons ejusdem generis. Considering, then, to refer to some of the authorities which an- that in 3 Car. I. c. 1, carriers of a certain nounced the time-worn maxim, “ejusdem description are mentioned, and that in 29 generis.” But it seems, from recent sugges- Car. II. c. 7, drovers, horse-coursers, wagontions, that I erred in so thinking, and so I ers, and travelers of certain descriptions are will refer to some “wise saws and modern specifically mentioned, we think that the instances,” illustrating the hackneyed posi- words, 'other person or persons,' cannot have tion heretofore taken. Thus, in Rex v. In- been used in a sense large enough to include habitants of Whitnash, 7 Barn. & C. 596, St. the owner and driver of a stagecoach." That 29 Car. II. c 7, § 1, provided "that no trades- case was approvingly cited and followed in man, artificer, workman, laborer, or other City of St. Louis V. Laughlin, 49 Mo. 559, person whatsoever" should exercise his ordi- where a question arose as to whether a linary calling on the Lord's day. And there- cense tax could be imposed on the profession upou it was ruled that the words "other per- of a lawyer. The charter, under which the soa" did not include a farmer, because not city authorities proceeded in imposing the
tax, provided as follows: "The mayor and city council shall have power within the city, by ordinance not inconsistent with any law of this state, to license, tax and regulate auctioneers, grocers, merchants, retailers, hotels, boarding houses, tenement houses, office buildings, public halls, public grounds, concerts, photographers, artists, agents, porters, runners, drummers, public lecturers, public meetings and shows, real estate agents and brokers, horse and cattle dealers, beerhouses, patent-right dealers, inspectors and gaugers, stock-yard proprietors, examiners of titles, conveyancers, mercantile agents, insurance companies, banking or other corporations or institutions, street-railroad cars, hackney carriages, omnibuses, carts, drays and all other vehicles, and all other business, trades, avocations or professions whatever.” And it was held, following the ruling in the case just previously cited, that the city had no power to impose a license tax on a lawyer, notwithstanding the charter, as quoted, concludes with the words "all other business, trades, avocations or professions whatever." The authority of Laughlin's Case was recognized in City of St. Louis v. Bowler, 94 Mo., loc. cit. 633, 7 S. W. 434, and has been uniformly followed by the courts of appeals. Knox City V. Thompson, 19 Mo. App. 523; State v. Taaffe, 25 Mo. App. 567; City of Hannibal v. Price, 29 Mo. App. 280; City of St. Joseph v. Porter, Id. 605. The only reason why we did not make the same ruling in Bowler's Case as in Laughlin's was that the charter had been amended, so that it had become much more comprehensive in its terms, the concluding words being: “All occupations, professions and trades, not here. tofore enumerated, of whatever name or character.” This quotation shows the 'pronounced difference between, and the distinguishing features of, the two cases, when thus contrasted.
Where landlords were authorized by statute to distrain for rent "all sorts of corn and grass, hops, roots, fruits, pulse, or other product whatsoever, which shall be growing on the estates demised," this was held not to include trees, shrubs, and plants growing in a nursery garden. Clark v. Gaskarth, 8 Taunt. 431. A statute exempted from taxation "every building erected for the use of a college, incorporated academy or other seminary of learning,” and upon this it was ruled that, inasmuch as all those enumerated were corporations, that, therefore, the general words, “or other seminary of learning," required that such institution should also be incorporated in order to have the benefit of the exemption. Chegaray v. Mayor, etc., of New York, 13 N. Y. 220. In Illinois, a railroad company was authorized by its charter “to purchase, hold and use all such real estate and other property as may be necessary for the construction of its railway and stations, and other accommodations as may be necessary to accomplish the
objects of its incorporation." But the term, "other accommodations," was held not to include an elevator, though confessedly adding to the facilities for handling, storing, and shipping grain, and thereby enabling the railroad company to do a greater business; and, among other reasons suggested by the court for this ruling, it was said that "what is included in the expression 'other accommodations' must be of the same class or kind as 'railway and stations,'” and then allusion is made to the well-settled canon of construction, that a general description, following a specific enumeration of objects or things, will be held to include only such as are of the same kind as those specifically enumerated. In re Swigert, 119 Ill. 83, 6 N. E. 469. A statute of the state of Pennsylvania made it a crime for any "warehouseman, wharfinger or other person,” to issue any vouchers for goods, etc. on this statute it was ruled that, being a penal statute, it must be construed strictly, and that the words "other persons," following the particular words, “warehouseman,” or "wharfinger," must be adjudged to refer to other persons ejusdem generis, viz. those who are engaged in a like business, or who conduct the business of warehouseman or wharfinger with some other business or pursuit, and that no one, unless brought within the plain terms of the act, could be held guilty thereunder. Bucher v. Com., 103 Pa. St. 528. Governed by the principle under discussion, it was ruled, in Michigan, that a statute which gave "every wife, child, parent, guardian, husband or other person” a right of action against a liquor seller for injury done to the plaintiff by reason of the intoxication of any person, did not give the intoxicated person himself a right of action, and that he was not within the statute. Brooks v. Cook, 44 Mich. 617, 7 N. W. 216. An insurance case in England, decided so late as 1887, in the house of lords, affords forcible illustration of the doctrine in hand. A steamer was insured by a policy on the ship and her machinery, including the donkey engine. The policy covered perils of the sea, specially naming many, and then continued: “And of all other perils, losses, and misfortunes that have or shall come to the hurt, detriment, or damage of the aforesaid subject-matter of this insurance, or any part thereof." For the purposes of navigation the donkey engine was being used in pumping water into the main boilers, when, owing to a valve being closed which ought to have been kept open, water was forced into and split open the air chamber of the donkey pump. The closing of the valve was either accidental, or due to the negligence of an engineer, and was not due to ordinary wear and tear. It was held that the injury was not covered by the policy, as it was not a peril of the sea; and, although it was undoubtedly “a loss or misfortune," yet the specific words of the policy, which preceded