At the April term, 1893, of the circuit court of Gentry county, the defendant was indicted for defiling Clara E. "Wheatley, a female under the age of eighteen years who had been and was then intrusted by her parents to his care.
On his application a change of venue was granted to Atchison county and the record was certified accordingly. He was duly arraigned and pleaded “not guilty.”
At the January term, 1894, of the Atchison circuit court, both parties, the state and defendant, announcing ready, the trial was proceeded with, resulting in a verdict of guilty and a sentence of three years’ imprisonment in the penitentiary. Motions for a new trial and in arrest were duly filed, and, upon being overruled, an appeal was applied for and granted to this court,
The indictment charges an offense under section 3487, Revised Statutes, 1889, and, omitting formal parts, is in these words: “That Oscar B. Lingle, late of the county aforesaid, on the first day of August, 1893, a person to whose care and protection one Clara^ P, *534Wheatley, a female under the age of eighteen years, to wit, of the age of sixteen years, had been and was then and there confided, her the said Clara F. Wheatley, unlawfully and feloniously did defile by then and there unlawfully and feloniously, carnally knowing her, and having carnal knowledge of her body, while she, the said Clara F. Wheatley, was then and there in the care, custody and employment of him, the said Oscar B. Lingle, against,” etc.
The defendant is a married man, forty-nine years old. In 1891 and up to Ndvember, 1892, he resided at King City. Some time in July; 1891, the defendant •employed Clara F. Wheatley, a girl then sixteen years old to do the housework in his family, his wife being sick. He made the arrangements for her employment with the girl’s father, assuring him that he (appellant) would pay her whatever she could earn; “that she would be treated just as if she were at home, good care to be taken of her, and that he would see that she didn’t get to running around or anything of that kind.”
The girl went to appellant’s house in July, 1891, and remained there continuously until October, 1892; then went to her father’s and returned in November, 1892, to help appellant and wife pack their household goods preparatory to removing from King City to Cameron. The girl then went to her father’s, and in January, 1893, she was discovered to be pregnant. Her father talked to her about her condition in March or April, 1893, and she stated, as she did on the witness stand, that appellant had intercourse with her twice while she was in his employ and under his care — once in July and again in August, 1892, that those were the only times, and that it was from this intercourse that she was pregnant.
She testified that one day in July, 1892, Mrs. Lingle, the wife of defendant had gone to visit Mrs. Hut*535ton; that witness had been ironing and about the middle of the afternoon had gone to her room and lain down and fallen asleep and was awakened by defendant coming into her room a nd he threw himself on her bed and had intercourse with her. She testified she resisted all she could. He put his hand over her mouth and told her not to say anything. She never yielded until she thought she had to. After he pulled up her clothes and put his hand over her mouth she made no further resistance. He then talked to her. Said he had never done such a thing before and never would again if she -would not telllt and said it would be a disgrace to the church. She testified she didn’t like to be talked about, so she promised him she would not say anything about it.
Defendant testified he never had connection with the girl. He offered evidence of excellent good character. He and his wife in their evidence both detailed some circumstances to reflect on the girl’s character.
The several errors complained of will be noted in the further discussion of the case.
I. The indictment is sufficient. It is not obnoxious to the criticism that it does not aver that the female was under eighteen years of age. It very clearly alleges that Clara Wheatly was under eighteen years of age on the first day of August, 1893, and that on that day the defendant, to whose care she had been and was then confided, defiled her. A clear substantive charge is necessary and this indictment meets that requirement,
II. The contention of the defendant, that his demurrer to the evidence should have been sustained because the transcript of the Gentry circuit court was not in evidence, is somewhat novel. To obtain a just conception of the point made, it must be premised that it is conceded and established that the indictment in this case was preferred by the grand jury of Gentry *536county; that the arraignment was had in that county and a continuance obtained and a change of venue awarded to Atchison county, and a transcript of all these proceedings duly certified was filed in the office of the clerk of the circuit court of Atchison county and was on file when this case was tried and the point now made that, because this transcript from Gentry county was not offered and read in evidence to the jury, the case was not made out. Por what purpose would it be evidence to the jury? By virtue of section 4167, Revised Statutes, 1889, when filed, the transcript became a record of the Atchison court, and proceedings were to be had thereon as if the cause had originated there. If the cause had been commenced in that court, will it be seriously contended that the record of the convening of the court, the qualification of the sheriff and his deputies, the impaneling of the grand jury, the return of the indictment should have been read to the jury? Assuredly not. Such a practice has never obtained in any court. Neither is it necessary to read to the jury the transcript. It is a matter with which they have no concern. It was for the court to determine whether the order of removal and prior proceedings in Gentry county conferred jurisdiction on it to proceed. If they did not, defendant could have moved for a remanding of the cause or saved his point by motion in arrest, but this claim is untenable. In State v. Gamble, 108 Mo. 500, the defendant complained that the indictment was not read to the jury, but it was ruled by this court that it was not necessary that the indictment should be read to the jury, that it was generally read to the jury as a part of the statement of the prosecuting attorney, but the defendant suffered no wrong because the formal charge was not read to the jury. Whether there was a lawful charge against defendant was a question of law for the court to deter*537mine by inspection of the record of which the transcript had become a part and not a question of fact for the jury. The point must be ruled against the defendant.
III. The order of removal was sufficient. The transcript contained the petition of defendant for a change of venue and the affidavits of the supporting witnesses all averring that the minds of the inhabitants of G-entry county were so prejudiced against him that he could not have a fair trial in said county. The transcript then recites that this application was taken up and considered by the court and sustained and the venue awarded to Atchison county, and the defendant’s bond fixed and on the same day he duly entered into a recognizance for his appearance at the next term of the circuit court of Atchison county at Rockport on the fourth Monday in January, 1894.
Where the rolls are thus complete and there is nothing to suggest a diminution, we are not at liberty to surmise and conjecture that there might have been another application on a different ground. State v. Daniels, 66 Mo. 192; Blodgett v. Schaffer, 94 Mo. 652.
IV. The objection to the first instruction for the state is that it improperly submitted to the jury “that Clara Wheatley was still under the age of eighteen years” when she was defiled by defendant. This contention is a corollary to the point made against the indictment which has already been considered and must along with that be held adversely to defendant. It is exactly in line with the instruction approved in State v. Strattman, 100 Mo. 540, and in no way conflicts with the first instruction for defendant.
V. Learned counsel insist that the second instruction for the state is vicious. It is as follows:
“2. The court instructs the jury that, in considering the weight of the evidence given by both defendant *538and his wife, they will take into consideration the fact that he is the defendant, testifying in his own behalf, and that she is his wife, and you may consider their interest in this case and the marital relation in passing on the credibility of their testimony.”
This instruction was first fully considered and approved in State v. Cook, 84 Mo. 40, and was reconsidered and approved in State v. Young, 105 Mo. 634, and in many cases since, and we must decline to enter again upon the discussion.
The legislature saw fit in removing the common law disability to attach 'this infirmity to the evidence of the defendant and his wife, and in reminding the jury of this limitation the court was simply instructing them upon the law of the case.
VI. The third instruction for the state and the fourth given at the instance of defendant, in regard to the credibility of witnesses, properly declared the well settled law on that subject, and does not sustain the objection urged against it.
VII. For the commonwealth, the court also gave the following instruction:
“4. The court instructs the jury that before they can acquit because a higher degree of crime has been shown, they will have to believe from the eviden.ee that, if the defendant were on trial for a much higher degree of crime, it would be their duty from such evidence to convict the defendant of such higher degree of crime, if they believe such evidence to be true, but in this connection you are instructed that if you believe from the evidence that the defendant did use force to accomplish his purpose, yet if you further believe from the evidence that the witness Wheatley did yield her consent to his embraces., however reluctantly, before the carnal act was accomplished, the defendant would not be guilty of such higher crime.”
*539This instruction met with the approval of this court in State v. Strattman, 100 Mo. 540, and was followed in State v. Stone, 106 Mo. 1, and we think the evidence in this case brings it within the principle of those cases. The instruction would have been better had it used the word “rape” instead of “higher crime.”
VIII. There was no error in refusing defendant’s fifth instruction for the reasons assigned for sustaining the second given for the state. Neither was there any occasion for another instruction on reasonable doubt as it had already been properly defined in the fifth instruction for the state.
IX. Hon. C. H. S. Goodman, one of defendant’s counsel, made the opening argument for the defendant. In the course of his remarks he called the attention of the jury to the fact that but two acts of carnal intercourse were testified to by prosecuting witness, one on the-day of July, 1892, and the other on the-day of August, 1892; that the evidence showed that the child was born in the usual time, was fully developed and perfectly formed, so that conception could not have followed the act of intercourse in August; that the prosecuting witness stated in most emphatic terms that the first act of intercourse was accomplished by force, that she was ravished. Thereupon he was proceeding to argue the extreme improbability of conception taking place under these circumstances, whereupon the court, without objection raised by the counsel for the state, interrupted counsel by stating that no testimony had been introduced upon that point, and that counsel should not testify in argument, and forbade any further statement on the point. To the action of the court in thus interrupting counsel and forbidding further argument on the point, defendant at the time excepted. It is now *540urged that counsel was denied the right to fully argue his case.
The right to be heard by counsel is fundamental and organic and courts of last resort will examine with the closest scrutiny a charge that it has been wrongfully denied or unreasonably abridged. Let us understand clearly, then, of what counsel complains. He was proceeding to argue to the jury that Miss Wheatley’s testimony was false and not -to be credited because although she had testified that her first intercourse with defendant was against her will and had been accomplished by force, yet she had conceived. In other words he was assuming as a scientific fact known and recognized by the consent of all nations and the experience of common life that, if the woman conceived, then there was no rape and therefore the jury should apply the maxim “falsus in uno falsus in omnibus.”
It is not contended that any physician or other witness had testified that such a deduction must follow as that upon which counsel was proceeding to found his argument, but he assumed that it was within the common knowledge and experience of mankind. If counsel’s premise is correct, his conclusion is inevitable. Parties are not bound to produce, nor juries to hear, evidence to establish the existence of facts within the daily experience and cognizance of all men. The courts take judicial knowledge of such matters without proof thereof.
Was counsel for defendant justified in assuming that, because Miss Wheatley afterward conceived, defendant had not accomplished her ruin by force as she testified? To this question the hornbooks of the profession gave an answer, many years ago. East, in his Pleas of the Crown (vol. 1, p. 445), says: “It was formerly supposed that, if a woman conceived, it was no rape, because that showed her consent; but it is *541now admitted on all hands that such an opinion has no sort of foundation, either in reason or law” 1 Hawkins, Pleas of the Crown, chap. 41, sec. 2.
“It is now conceded that the organs of conception like those of digestion perform their appropriate functions without the volition of the female.” Says - Lord Hale, in his Pleas of the Crown, vol. 1, p. 631. “And, therefore, that opinion of Mr. Pinch, cited by Dalton, ubi supra, and by Stamford, Cap. 14, fol. 24, out of Britton, that it can be no rape, if the woman conceive with child, seems to be no law mulier enim vi oppressa coneipere potest.” 2 Bishop’s New Crim. Law, sec. 1130, par. 2.
The learned counsel, then, was not only relying upon an exploded theory for his fact, but had he been permitted to proceed on that line, the jury might have been led to understand that the subsequent conception disproved the force as a matter of law. We think the court very properly declined to permit a discussion based upon a theory which has no scientific support in medical jurisprudence.
Having patiently gone through all the exceptions of the counsel, we discover no good reason for reversing the judgment, and it is accordingly affirmed.
Burgess and Sherwood, JJ., concur.