
    THE STATE v. WALTER KELLY, Appellant.
    Divisiori Two,
    November 13, 1912.
    1. CARNAL KNOWLEDGE: Previous Chaste Character: Presumption: Instruction. It- was error, in a prosecution for carnally knowing an unmarried female of previously chaste character, to instruct the jury “that the law presumes that every woman is of chaste character until the contrary appears.” The Supreme Court has'heretofore clearly indicated its view that the previous chastity of the prosecutrix is an element of the offense, under our statute, which must be both charged and proved.
    2. -: Pregnancy of Prosecutrix: Evidence. Evidence of the pregnancy of the prosecutrix is properly admitted in a prosecution for carnal knowledge.
    Appeal from St. Louis City Circuit Court. — Hoja Eugene McQuillin, Judge.
    Reversed and remanded.
    
      Farris S Watson for appellant,
    (1) The prosecuting 'witness over the objection of defendant, was permitted to testify that at1 that time she' was pregnant. When she in her testimony admitted that she had intercourse with persons other than the defendant, and having had equal opportunity with other men to bring about such condition, she should not have been permitted to so testify. (2) Instruction 7, given by the court, which is the reasonable doubt instruction, and which is in well approved form, and the law, is in direct conflict with instructions 4 and 11, for in 4 and 11 the court removes the presumption of innocence and the burden of proof from the State, and puts the presumption of guilt upon the defendant, as well as the burden of proof. In other words, the jury are told in one breath that the defendant is presumed to be innocent, and that the State is required to prove his guilt, and in the next breath destroys this presumption of innocence, and puts the burden of proof of defendant’s innocence upon defendant. Instruction 11 is no doubt a correct principle of law, under the same rule that a man is presumed to be honest until the contrary is shown; so if unchastity were charged against a female, under the general law of presumption she would be presumed to be virtuous until the contrary were shown; but where you charge a defendant with having carnal knowledge of a chaste female, the presumption of innocence of the accused being the greater and more necessary for the protection of the right of the citizen, the chastity of the female is not sustained by the general presumption of virtue, but is an issue of fact, which requires substantive proof; and it is a grievous error to instruct the jury, as was done in this instruction, “that the law presumes that every woman is of chaste character until the contrary appears,” when it had previously told the jury that they must believe and find from the evidence that the female at the time of the alleged offense was a woman of previous chaste character, and that the State must prove the same to their satisfaction, and beyond a reasonable doubt. State v. Rosewell, 153 Mo. App. 341; State v. Jacobs, 133 Mo. App. 185; State v. Buck, 120 Mo. 4891. But instruction 11 in this case cannot be supported by this rule. State v. Shelly, 166 Mo. 616; State v. James, 133 Mo. App. 304; State v. Meysenburg, 171 Mo. 58. (3) In the prosecution of this offense the previous citaste character of the prosecutrix is a matter of proof, and not presumption and must be proven the same as other material allegations. State v. DeWitt, 186 Mo. 64. And in cases of seduction the State must not only charge but prove that the prosecutrix was a woman of good repute. State v. McCaskey, 104 Mo. 647; State v. Fogg, 206 Mo. 731; State v. Darling, 202 Mo. 165; State v. Hickam, 95 Mo. 329'.
    
      Elliott W. Major, Attorney-General, ánd Charles G. Iievelle, Assistant Attorney-General, for the State.
    (1) The testimony of prosecutrix that she was pregnant at the time of the trial and that her condition was caused by the act of appellant, was competent. State v. Palmberg, 1991 Mo. 253. If the court’s ruling that this testimony was competent was error, because prosecutrix had testified that she had had intercourse with a person other than appellant, it was error in appellant’s favor because it tended to show that prosecutrix was unchaste. (2) It is contended that instruction 11 is wrong, because conflicting with the presumption of innocence instruction and Tjdth the reasonable doubt instruction. This, we believe, presents a question of some merit. Instruction 6 is not the law. The defendant has no right to single out each material fact and have the court direct the jury that if they have a reasonable doubt as to such fact, they should acquit. A doubt as to a single fact in the case is not enough. The doubt must be upon the whole case; State v. Yells, 11.1 Mo. 533; State v. Whalen, 98 Mo. 222. But the giving of this instruction was error in appellant’s favor. Instruction 11, that every woman is presumed to be chaste until the contrary appears, is undoubtedly a correct statement of the law. The question here is whethér it was error to give such instruction in this case. It is contended that from the giving of these instiuetions, a conflict of presumptions arose. But, an analysis of the law of presumptions will show that there can be no conflict of presumptions. Where presumptions are said to be in conflict, it will be found that one of them, at least, is without basis, of fact, and is spoken of as a presumption only upon the assumption that because a presumption. of law sustains the burden of proof, a ruling as to the burden of proof states a true presumption of law. In the case at bar there was a pseudo-pr'esumption Of law that appellant was. innocent, and that remained throughout the trial, and there was also a true presumption of law that prosecutrix was chaste. They were not in conflict, because the pseudoprésumption of innocence was separate and apart from the legitimate inference of guilt that arose through the entertaining of the presumption of chastity. While the presumption of chastity may infer appellant’s guilt, it does not interfere with the burden of proof, the pseudo-presumption of innocence. Therefore, we submit that there was no conflict between the instruction on presumption of innocence and the instruction on presumption of chastity. Though the instruction on presumption of chastity was unquestionably a correct statement of abstract law, it is probably the true rule that the essential element of chastity cannot be proved, or looked upon as proved, by a presumption. of law alone. There was evidence' that prosecutrix had lived with her parents until a short time before the time of the offense charged did not associate with men nor receive their attentions, and never had sexual intercourse with any man before the offense charged. Such evidence has been held sufficient' to' prove previous chaste character.. State, v. Kelly, 191 Mo. 691. ' '
   BLAIR, C.

— Under an information charging him with carnally knowing an unmarried female of previously chaste character,' between the ages of fourteén and eighteen years, Walter Kelly was convicted in' the circuit court of the city of St. Louis, sentenced to six months in the workhouse, and has appealed. , .

I. As the record stood at the close of the evidence, the only, actually contested issue of the fact was the previous chastity of the ■ prosecutrix. ■ The trial court instructed, among other things, as to reasonable doubt and the presumption of innocence, and also, over appellant’s objection and exception, gave the following:

“The court further instructs you that the law presumes that every woman is of chaste character until the contrary appears.”

The learned Attorney-General frankly concedes the seriousness of the question presented by the' giving of this instruction. On the question whether the presumption of chastity obtains in a case of this Lind ¿nd relieves the State of the necessity of bringing forward, in the first instance, evidence of the previously chaste character of the prosecutrix, the decisions in other jurisdictions are not in accord. This court has heretofore clearly indicated (State v. McMahon, 234 Mo. 611; State v. McCaskey, 104 Mo. l. c. 647; State v. Hill, 91 Mo. l. c. 427) its view that the previous chastity of the prosecutrix is an element of the offense, under our statute, which must he both charged and proved. Those text-writers and encyclopaedists who have expressed an opinion agree this is the sounder and more logical rule (Bishop on Statutory Grimes, Sec, 648; 1 Bishop’s New Crim. Pr,oc./ Sec. 1106; 4 Wigmore on Evidence, Sec. 2528; 25 Am. & Eng. Ency. Law, .p. 240) and an examination of the cases tends only to confirm the accuracy of this' conclusion! It is undoubtedly true that the practical universality of chastity among women justly gives rise, in most circumstánces, to a presumption of chastity on the part of an individual member of the sex; .but 'in criminal prosecutions the presumption of chastity logically yields to the presumption of defendant’s innocence when the two directly conflict, as in this case. It is suggested there can be no such thing as conflicting presumptions and, hence, the conclusion that the presumption of chastity disappears because of its conflict with the presumption of innocence is unsound. Whether this theory is logical when applied to presumptions arising from facts proved by the evidence in a given case it is unnecessary to inquire, since the presumption of chastity does not arise on this record in that fashion. Whether the presumption of innocence be called merely the reason for the rule requiring proof of guilt beyond- a reasonable doubt, or be held to be, of itself, substantive evidence in defendant’s favor, it cannot long survive if general inferences and presumptions not arising out of the facts proved by the evidence in the case are permitted to overthrow it. Whatever may be theoretically true as to the possibility of a conflict of presumptions, the jury’s perplexity when confronted in this case with instructions embodying both the presumption of innocence and that of chastity and their unavailing effort to secure an explanation as to which presumption took precedence, evidences the possibility of a practical conflict productive of confusion and injustice. The instruction complained of should not have been given.

II. There was no error in admitting evidence of the pregnancy of prosecutrix (State v. Palmberg, 199 Mo. l. c. 258) since, as has often been pointed out, pregnancy is evidence of intercourse and intercourse is one of the constitutive elements of the offense charged.

So far as concerns the cross-examination of defendant as to his age it will suffice to say that, if erroneous, the error can easily be obviated on another trial; and the further objections to the instructions may be avoided by observance of the rule laid down in the preceding paragraph. The evidence tending to show prosecutrix to he unmarried is not as clear as might be desired and, it may he added, it is to he hoped care will he taken to eliminate all question (State v. DeWitt, 186 Mo. l. c. 68) as to the sufficiency of the verdict in case another trial is had and conviction secured.

The judgment is reversed and the cause remanded.

Roy, G., concurs.

PER CURIAM.

— The foregoing opinion of Blair, C., is adopted as the opinion of the court.

All the judges concur.  