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STATE V. SIBLEY.

(132 MI88OURI, 103. WITNESSES-IMPEACHMENT FOR WANT OF CHASTITY. Evidence of general bad reputation for chastity is admissible to im. peach a witness, whether male or female.

G. S. Elliott and W. Hunter, for the appellant.

R. F. Walker, attorney general, M. Jourdan, assistant attorney general, and J. J. Russell, for the state.

103 GANTT, J. As stated by my associate, I dissent from Bo much of the opinion of the court as discredits and overrules State v. Rider, 95 Mo. 486, and State v. Shroyer, 104 Mo. 441; 24 Am. St. Rep. 344.

I do not consider that State v. Grant, 79 Mo. 113, 49 Am. Rep. 218, is authority for the distinction made between the impeachment of male and female witnesses. In that case, Sherwood, J., simply said: "Under the rulings in this state, a witness may be impeached, not only by a general reputation as to veracity, but the inquiry may extend to the general moral character or reputation of the witness. . . . . And this ruling has been made in cases as to the general reputation of a female witness respecting chastity. Similar rulings have been made in some other states." I am unable to find in this extract any foundation for the distinction now sought to be established between the credibility of the two sexes. The mere assertion that the general character of the female might be shown falls far short of the announcement that a male witness could not be thus attacked. The case of Commonwealth v. Murphy, 14 Mass. 387, cited as authority in State v. Grant, 79 Mo. 113, 49 Am. Rep. 218, drew no such distinction.

As I interpret State v. Grant, 79 Mo. 113, 49 Am. Rep. 218, this court simply relaxed the old rule confining the impeachment to general bad reputation for truth and veracity by permitting evidence showing the general moral character of the witness to be bad, and, as an example of this, the Massachusetts case, permitting evidence of prostitution of a female witness, was cited: State v. Egan, 59 Iowa, 636.

It is important to get at the reason underlying the decision, and the Massachusetts court put it upon the ground of the loss of moral principle. This testimony 104 is admitted upon the ground that the prostitute, by her life of vice, has so impaired her moral sense that the obligation to speak the truth is no longer binding, or has become more or less lax. If this be true of the female, why not true of her habitual companions; and why, though there be degrees in the vice, may not a man's disregard of the laws of chastity, which compel his association with the prostitute, be shown as tending to prove a disposition to lightly regard the obligations of his oath. The rule only admits the evidence when it has ripened into a general reputation for the vice. For my part, I think it rests upon the same foundation whether the witness be male or female. It was so ruled by a unanimous court, before its separation into divisions, in State v. Rider, 95 Mo. 474, and was followed by division two, as then constituted, in State v. Shroyer, 104 Mo. 441; 24 Am. St. Rep. 344; and I concurred in the last case, and I see no reason for changing the view I then held.

For these reasons, I most respectfully dissent from the views of Judge Burgess on this point. Brace, C. J., and Barclay and Macfarlane, JJ., concur with me on this proposition.

IN THE CASE of State v. Sibley, 131 Mo. 519, It appeared that Sibley appealed to the supreme court from a conviction and sentence to imprisonment for a term of two years for defiling, debauching, and carnally knowing one Lula Hawkins, a female under the age of eighteen years, who was charged to have been confided to his care and protection. She was the daughter of defendant's wife, Roxie, and, at the time of her mother's marriage to the defendant, was about nine years of age. From that time on defendant kept, clothed, and sent her to school until she was thirteen years old. when she refused longer to go to school, but continued for some time thereafter to reside in defendant's family until she was about sixteen years of age, when she went away and thereafter lived elsewhere. There was nothing to show that Lula was confided to the care and protection of defendant, other than what has been stated. It was proved that when she was about thirteen years of age, the defendant had sexual intercourse with her, and that as the result of such illicit in. tercourse she was delivered of a stillborn child. The defendant was convicted under a statute providing that "if any guardian of any female under the age of eighteen years, or any other person to whose care or protection any such feinale shall have been confided, shall defile her, by carnally knowing her, whlle she remains in his care, custody, or employment, he shall, in cases not otherwise provided for, be punished by imprisonment,” etc: Mo. Rev. Stats., sec. 3487. The supreme court sustained the ruling of the lower court, on the ground that the statute applied to the defiling by a stepfather of his stepdaughter, though there was no confiding of her to his care and protection by express agreement.

That part of the opinion of Mr. Justice Burgess from which Mr. Justice Gantt dissented, as shown by the principal case, was as follows: "Witnesses were permitted, over the objection of defendant, to testify that his general character for chastity and virtue was bad. This evidence was, of course, introduced for the purpose of impeaching him as a witness, and not for the purpose of assailing his character as a party defendant, though it is doubtful if its effect was not more disastrous in its application to him in his character as defendant than as witness. No evidence had been offered by him to sustain his character as defendant, and, until that was done, it could not be directly attacked as such by the state. In State v. Grant, 79 Mo. 133, 49 Am. Rep. 218, it was held that the rule in this state permitting a witness to be impeached by proof of general reputation for unchastity has been confined to females. The rule thus announced was followed and approved in State v. Clawson, 30 No. App. 139. So it was held in State V. Coffey, 41 Mo. App. 455. The more recent decisions of this court, however (State v. Rider, 95 Mo. 486, and State v. Shroyer, 104 Mo. 441, 24 Am. St. Rep. 344), hold that the rule applies alike to both sexes, and that such reputation may be shown to discredit a male as well as a female witness. The writer adheres to the rule first stated, and is of the opinion that such evidence is inadmissible in any case for the purpose of impeaching the character of a male witness, and especially in a case like the one in hand, where the defendant's character for chastity is directly involved. It is a matter of common knowledge that the bad character of a man for chastity does not even in the remotest degree affect his character for truth, when based upon that alone, wbile it does that of a woman. It is no compliment to a woman to measure her character for truth by the same standard that you do that of man's predicated upon character for chastity. What destroys the standing of one in all walks of life has no effect whatever on the standing for truth of the other.” Mr. Justice Sherwood dissented and said: “Although I concur in reversing the judgment herein, I do not think the cause should be remanded, because I do not believe this case falls within the penalties of section 3487 of the Revised Statutes of 1889. My idea is that there must be an actual or affirmative confiding; at any rate, something more than mere intermarriage with the mother of the girl betrayed. If the relations existing between stepfather and stepdaughter are sufficient to sustain this prosecution, then, under the same section, a father would also be subject to the same provisions; but no one would contend that a father is subject to such a prosecution, and this because his daughter has not been confided to his care and protection within the meaning of the statute."

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Impeaching Witnosses by Proving Want of Chastity. General Grounds of Impeachment. There is much conflict of opinion among text-writers and in judicial decisions as to the mode of

examining into the character of witness sought to be impeached. Many authorities hold that the inquiry must be limited to the character of the witness for truth and veraci. ty. Others assert that the inquiry involves the entire moral character of the witness whose credit is impeached, and his estimation la society, and that the proper question to be propounded to the imneaching witness is whether he knows the general moral reputation of the witness sought to be impeached. The weight of authority sustains the latter rule, but no review of these authorities, or discussion of the reasoning upon which they rest is necessary to the elucidation of the subject matter in hand.

The authorities are somewhat in conflict as to whether want of chastity in a witness can be inquired into for the purpose of impeachment, but the great weight of authority sustains the doctrine that evidence of want of chastity is not permissible in any case other than rape or the like, to impeach the credibility of a witness, whether male or female, and regardless of the fact whether such witness is an interested party to the action or simply a witness called ordinarily by one side or the other.

The credit of a witness can only be impeached by proof of his general character for truth and veracity, as held by some courts, or by proof of this and of his general moral character, as held by others, and under neither rule can he be impeached by proof of a particular immoral act, nor by proof of general reputation for a particular immorality, such as unchastity: Cline v. State, 51 Ark. 141; State v. Fourmer, 68 Vt. 262; Morse v. Pineo, 4 Vt. 281; State v. Smith, 7 Vt 141; Spears v. Forrest, 15 Vt. 435; Gilchrist v. McKee, 4 Watts, 350, 28 Am. Dec. 721; Bakeman v. Rose, 14 Wend. 105; Ketchingham v. State, 6 Wis. 426; Jackson v. Lewis, 13 Johns. 504; Commonwealth v. Moore, 3 Pick. 194; Commonwealth v. Churchill, 11 Met. 538; 45 Am. Dec. 229; Bakeman v. Rose, 18 Wend. 146; State v. Larkin, 11 Nev. 314; State v. Hobgood, 46 La. Ann. 855; State v. Eberline, 47 Kan. 155; People v. Yslas, 27 Cal. 631; People v. Chin Hane, 108 Cal. 597; Barkly v. Copeland, S6 Cal. 483; Johnson v. State, 61 Ga. 305.

In impeaching a witness, the proper inquiry is as to the general character of the witness, and this is generally not restricted to truth and veracity, but an inquiry into the character of the witness for chastity is not permissible for the purpose of impeachment. The question must be confined to the general moral character of the wit. ness, and inquiry cannot be made as to specific acts of immorality, nor as to chastity, generally or specifically: Holland v. Barnes, 53 Ala. 83; 25 Am. Rep. 595; Birminghain etc. Ry, Co. v. Hale, 90 Ala. 8; 24 Am. St. Rep. 748; Rhea v. State, 100 Ala. 119; Spicer v. State, 105 Ala. 123; Kilburn v. Mullen, 22 Iowa, 498; Dimick v. Downs, 82 111. 570; Evans v. Smith, 5 T. B. Mon, 364; 17 Am.. Dec. 74. There is great conflict in the decisions in Missouri upon this question, but until the decision in the principal case it was there maintained, that so far as male witnesses were concerned, it was not permissible to impeach them by evidence of general repu. tation for unchastity: State v. Clawson, 30 Mo. App. 139; State v. Coffey, 44 Mo. App. 455. The reasons for this rule were thus stated in State v. Larkin, 11 Nev. 330: "A witness may be unchaste and yet be truthful. A witness may be chaste and yet be untruthful. The law affords ample remedies for testing the credibility of witnesses, without introducing testimony of specific acts of immorality, and in particular instances allows greater latitude than in others, owing to the special facts and circumstances that surround each individual case. There are, perhaps, exceptional cases where it might be proper to show the utter depravity of the moral

character of a witness, in order to establish the fact that such a witness is not entitled to any credit. But we are not dealing with the exceptions. The general rule as recognized by a majority of the decided cases, is, that evidence of bad character for chastity, where such character is, collaterally, not directly, in issue, is not admissible for the purpose of impeaching the credibility of a witness. As the naked question whether from the witness's reputation for chastity, he was or was not wortby of belief, was inadmissible, it was improper to couple the question with one relating to his reputation for truth, veracity, and morality, as it would call for an expression of opinion as to the effect of chastity, or want of it, upon the credibility of testimony": Cline v. State, 51 Ark. 144; citing Massey V. Farmers' Nat. Bank, 104 Ili, 334, 335.

Under the rule that no particular act of immorality is sufficient to impeach the credibility of a witness, it has been held in many cases that testimony to show that the witness either was or had been a common prostitute is inadmissible for the purpose of impeaching her credibility; Jackson v. Lewis, 13 Johns. 504; People v. Chin Hane, 108 Cal. 597; Morse v. Pineo, 4 Vt. 281; State v. Smith, 7 Vt. 142; Spears v. Forrest, 15 Vt. 435; State v. Fournier, 68 Vt, 262; Bakeman v. Rose, 14 Wend. 105, affirmed, 18 Wend. 146; Commonwealth V. Churchill, 11 Met. 538; 45 Am. Dec. 229. In impeaching a witness, the inquiry is not limited to character for truth and veracity, but may extend to general moral character, and although a notorious want of chastity in a female witness will create a general bad cbaracter and general bad reputation, still the independent fact that she is a common prostitute, or keeps a house of ill-fame, is not admissi. ble to impeach her credibility: Birmingham etc. Ry. Co. v. Hale, 90 Ala. 8; 24 Am. St. Rep. 748; Rhea v. State, 100 Ala. 119; McInerny v. Irvin, 90 Ala. 275; State v. Hobgood, 46 La. Ann. 855. Evidence of special acts of adultery is not admissible for the purpose of impeaching a witness: Johnson v. State, 61 Ga. 305. Nor can a witness be impeached by proof of a single act of immorality of any kind: Long V. Morrison, 14 Ind, 595; 77 Am. Dec. 72. In a bastardy case evidence that the general character of the complainant for chastity, previous to her connection with the respondent, was bad, and that she had previously bad frequent criminal intercourse with other persons, 18 not admissible for the purpose of impeaching her credit as a witness: Commonwealth v. Moore, 3 Pick. 194; State v. Perkins, 117 N. C. 698; State v. Parish, 83 N. C. 613. Nor can a single act of bastardy at a remote period be shown to impeach a witness: Weathers v. Barksdale, 30 Ga. 888.

Some consideration is due to that line of cases which support the doctrine of the principal case, and hold that want of chastity is ground for the impeachment of a witness. These cases are so few in number, however, as to be almost isolated when compared to the number of cases which maintain the contrary rule. In an early case in Massachusetts, it was held that the credibility of a witness may properly be impeacbed by proving her to be a common prostitute: Commonwealth v. Murphy, 14 Mass. 387. The same ruling obtained 10 Weathers v. Barksdale, 30 Ga. 888. Commonwealth v. Murphy, 14 Mass. 387, bowever, was expressly overruled in Common. wealth v. Churchill, 11 Met. 538; 45 Am. Dec. 229. It has

AX. ST. REP., VOL. LIII. – 31

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