An information was filed in the Circuit Court of the City of St. Louis, by which the defendant was charged (under *Page 212 Sec. 3270, R.S. 1919) with forcibly taking and carrying away a child under the age of twelve years, with the intent to detain and conceal said child from its parent. He was convicted and sentenced to imprisonment in the penitentiary for six years, and then, in due course, perfected this appeal.
Constance Fuller, the victim of the alleged offense, was less than seven years of age at the time in question. At the trial, about one year later, she was called to the witness stand, but, failing to qualify as to the meaning of the oath of a witness, she was not permitted to testify.
According to the evidence offered by the State, this child lived with her mother, a widow, and her brother and sister, at 4437 Pennsylvania Avenue in the City of St. Louis. She and her sister, Marcella Fuller, ten years of age, and their playmate, Dolores Gerlach, eleven years of age, attended the St. Thomas School, located about four blocks from the Fuller home. During the noon recess (about 12:30 P.M.), on November 3, 1926, while these three little girls were returning from their homes to school, a man in a Ford coupe automobile stopped them and inquired as to where he might find Mother Devlin. After Dolores told him that Mother Devlin had been transferred to St. Charles, Missouri, he asked them to get into his car and ride to the school building. When they declined his invitation to ride, he grabbed Constance, pulled her into the car, and drove away. She was crying, and he had his hand over her mouth. Marcella and Dolores followed the car for a short distance, shouting to the man to stop the car, and then Marcella ran back to her home and told her mother what had happened. Geraldine Theiss, another school girl, fifteen years of age, saw Constance in the car, and wrote down the license number of the car (492726), which was reported to the Fuller family and police headquarters. About two hours later, Charles Wiegand, an automobile salesman, saw a man driving away from a quarry and dumping ground at 5400 Broadway in a Ford coupe, found Constance there crying, and took her to her home. "Her legs were all scratched — and there were a couple of spots, white spots, on her panties," and she was in a "hysterical condition," at that time. The police officers located the owner of the Ford coupe, John Yozits, through the license number (492726), and information obtained from him led to the arrest of the defendant. Yozits testified that the defendant borrowed his Ford coupe about 8:30 in the morning and did not return it until sometime in the afternoon, on November 3, 1926. Marcella Fuller, Dolores Gerlach and Geraldine Theiss positively identified the defendant, at the trial, as the man who took Constance Fuller away in the Ford coupe on that day. Mrs. Marie Fuller, Constance Fuller's mother, and three police officers, testified that, on November 4, 1926, the day of the defendant's *Page 213 arrest, without any abuse, coercion, threats or promises on the part of the officers, the defendant dictated, and then read and signed, the following statement (State's Exhibit A), which was offered in evidence:
"DEPARTMENT OF POLICE City of St. Louis
November 4th, 1926. District Secr. Serv. Bureau A Subject Statement made by Edward Miller.
"My name is Edward Miller. I am twenty-one years old, born in Mo. Laborer, and reside at 4631 Louisiana Ave. and make the following statement of my own free will, without any threats or promises.
"About 8 o'clock A.M., November 3, 1926, I went to the Valley Motor Car Co., located at 3664 Gravois Ave., where I formerly worked, and borrowed a Ford Coupe from John Yozits, who is employed there, telling him that I wanted to take a girl to work, and after getting the car from Yozits I drove around through South St. Louis, stopping at several saloons, where I drank whiskey, and about 12 o'clock noon, while driving along at Minnesota and Chariton St. I stopped the car, after seeing three young girls walking north on the east side of Minnesota, whom I stopped and asked them where a certain store was which I cannot recall, I then, while seated in the car, asked one of the three girls to get in the car and show me where the store was, after one of the girls got close to the car having her hand on the seat I grabbed her hand and assisted her in the car, I then drove north on Minnesota Ave. with the girl, to Meramec Street, east to Nebraska Ave. then south to Broadway; to Bates Street, over to Michigan Ave., then south into the county as far as Cliff Cave, where I stopped on the hill, then after stopping while in the car I asked to see and open her pants. She hesitated and started to cry, whereupon I told her I would take her back to school if she would do as I asked to do. I then tried to unbutton her pants and could not find the buttons. She then unbuttoned them herself, after which I then put my head between her legs and kissed her privates several times, and also put my hand on her privates and played with it. About that time some man came along and drove a short distance and stopped again repeating the same thing, and at the same time playing with my private until I had a discharge, giving me the same satisfaction as if I had an intercourse with a woman. After all this occurred I drove back to the city, where I made several stops, intending to repeat the above act, but was scared by people passing along the street. I finally drove to a quarry located in the 5000 block on Pennsylvania Ave., where I asked the girl to get out of the car, which she did. I then *Page 214 asked her to lay on the ground, but she sat down. I then pushed her over and raised her dress and pulled down her pants, taking my privates out which was hard and put same between her legs for several minutes, rubbing same up and down alongside of her privates until I had a small discharge. After this happened I got up and jumped into the car and drove away, leaving the girl there.
Signed EDW. MILLER. Witnesses Det. Arthur Egenriether " Arthur E. Sept " A.R. Borlinghaus " Sergt. Hy. Sieckhaus."
The defendant, testifying in his own behalf, denied any connection with the offense charged. He admitted that he signed the statement above quoted, but denied that he made the statement. He said the officers "wrote it" and he "had to sign it;" that one of the officers "pulled his gun out of his holster," and said: "Either sign it, or else;" that the statement was not true; and that he was "down town, looking for work at the Post-Dispatch quarter after twelve." on the day in question.
Two witnesses, Dr. Willard J. Hans and Rev. Bernard J. Benton, testified to the defendant's previous good reputation for morality.
I. The defendant's challenge of the sufficiency of the evidence cannot be seriously considered, in the face of the facts and circumstances developed at the trial of this case.Sufficient Obviously, the jury believed the testimony of theEvidence. State's witnesses, which, if true, leaves no room for substantial doubt of the defendant's guilt. Moreover, the jury were fully warranted in finding that the defendant voluntarily made and signed the written confession of his guilt, which was offered in evidence, if they did so find. The demurrers to the evidence were properly overruled.
II. It is said that "the court erred in failing to instruct the jury on circumstantial evidence." As above shown, two witnesses testified that they saw the defendant forcibly take into the Ford coupe and carry away the child in question, and another witness testified that she saw the defendant while he wasInstruction: engaged in forcibly carrying away the child.Circumstantial There was also positive proof that the defendantEvidence. voluntarily confessed that he committed this crime. It is only when the State relies upon circumstantial evidence alone that an instruction *Page 215 on the legal effect of such evidence is required. The defendant did not request that such an instruction be given, and he is not in a position to complain of the court's failure to instruct the jury on a collateral matter. [State v. Silvey (Mo. Sup.), 296 S.W. 128.]
III. The other assignments of error, contained in the motion for a new trial, relate to the admission and exclusion of evidence, and the failure of the court to instruct the jury "on all phases of the law applicable to the case." These assignments are general in character, and, therefore, presentAssignments. nothing for our review. [Laws 1925, p. 198; State v. Standifer, 316 Mo. 49, 289 S.W. 856.]
The information and the verdict are sufficient in form and substance, and it is our conclusion that the defendant was accorded a fair and impartial trial. The judgment is affirmed.Higbee and Davis, CC., concur.