State v. Drummins. Defendant did not take the stand in his own behalf, but upon the trial, in making objection to certain testimony which was offered, through his counsel he admitted acts of sexual intercourse with prosecutrix, and the State offered upon its side a letter from defendant to prosecutrix vaguely hinting at marriage. Touching the age of prosecutrix there was no testimony in the case, except her own, and to offset this, defendant offered one witness who testified to the statements of prosecutrix, indicating that she was at the time of the alleged promise of marriage over the age of twenty-one years. Some three or four witnesses were put upon the stand by defendant and each was asked whether he had had sexual intercourse with prosecutrix. Each of them denied the fact; thereupon the defendant by his counsel, averring surprise, made profert of testimony to the effect that each of these several witnesses had, before they were put upon the stand, told defendant and his counsel that they had had sexual intercourse with prosecutrix, and that in the belief that they would so testify if put upon the stand, they were called as witnesses by defendant. The court refused to permit these witnessess to be impeached by defendant by making the showing which they offered to make of prior, extrajudicial contradictory statements. This is urged as error. More specific reference will hereafter be made to this question, as well as to the evidence which bears upon other points which we find it necessary to discuss in our opinion, wherein all further facts, if any such there be, which will serve to make clear these points, will be found. I. It is ably and strenuously contended that the evidence is insufficient to sustain the charge of seduction, and that a demurrer interposed thereto below ought to have been sustained. This contention is obviously a serious one, as the statement of the case makes manifest. The sexual intercourse was admitted. The four other constitutive elements of seduction under promise of marriage, to Sufficiency of Evidence. State v. Drummins. wit, (a) was there a promise of marriage prior to the seduction, (b) was the prosecutrix a woman of previous good repute, (c) was she when debauched under twentyone years of age, and (d) was she unmarried at the time? are put in question by this contention. We have no hesitation in saying that there was substantial evidence of all of the above elements of this offense, save and except as to the first. The fact that prosecutrix was unmarried is shown by the proof, and is in no wise questioned. The fact that prosecutrix's age put her under the protecting shelter of the statute was sharply controverted, but the evidence of the fact was substantial, and it became therefore a question for the jury. There was no countervailing evidence of the proof touching the agreement to marry, so we need not trouble ourselves upon that specific point. The point urged upon this specific phase being the alleged lack of that necessary corroboration required by the statute. [Sec. 5235, R. S. 1909.] If the testimony of the sister of the prosecutrix is to be believed, there is sufficient corroboration of the fact that a promise of marriage existed. For this witness says that she was called into a room wherein defendant and prosecutrix were and there informed by the latter, in defendant's presence, that prosecutrix and defendant were going to marry. This witness says further that she made inquiry as to the intended date of the proposed hymeneal rites and was told by defendant that it would occur "some time in June." We have held that a similar admission on defendant's part constituted sufficient corroboration. [State v. Long, 257 Mo. 199; State v. Long, 238 Mo. 1. c. 394.] While the facts of this hurried and hectic courtship, as well as the testimony of both the prosecutrix and her sister, bear well-nigh a score of earmarks of incredibility, and while to some sixty or more important and sometimes crucial questions, both these witnessess either refused to answer, or took refuge in an alleged failure of memory, all of these matters and things were for the jury. And while they found the fact differently from the view inevitably arising upon the present show 274 Mo.-41 State v. Drummins. ing of the cold record, they yet saw fit to give the fact credence and the trial court approved their conclusion, and since that conclusion is based upon substantial evidence we are without power to interfere. Moreover, one of the letters written by defendant to the prosecutrix, is to a limited extent corroborative. For the above reasons we are constrained to overrule this contention. II. Cognate to this question of corroboration of the alleged promise of marriage, is also the question as to the date when this promise occurred. Defendant con Birth of Child: Period of Gestation. tends with much earnestness that even though there be found substantial corroboration of the fact of a promise of marriage, yet since the child was born on the 16th day of October it must necessarily have been conceived prior to the date fixed by the prosecutrix and her sister as the date of the promise of marriage. This date prosecutrix and her sister fixed as the 17th day of January, 1915, and prosecutrix likewise swore that the initial act of sexual commerce occurred about the last day of January, or the first day of February, 1915, though prosecutrix swears with much certainty that the conception took place on the 14th day of February, 1915. From the former date until the birth of the child 258 days, or less, elapsed, and from the latter date to the same event 244 days elapsed. In passing it may be said that upon the preliminary hearing of defendant both prosecutrix and her sister gave a different date to the promise of marriage, placing it some ten days or two weeks subsequent to that they fixed at the trial. But of course this contradiction was for the jury. We judicially notice that the period of human gestation is about ten lunar months or 280 days. Here the alleged period of gestation fell 36 days short of that period which we judicially notice. We take notice judicially of the length of gestation, because it is a matter of common knowledge, and not because there may be open to us learned treatises upon the subject which are not convenient to the hand and eye of the State v. Drummins. laymen who compose juries. If so it be that a child may be born and live when only 244 days have elapsed between conception and birth, we are of the opinion that some expert evidence of the fact should have been offered. At least there should have been proof of lack of perfect maturity in the child from which the inference of a precocious birth would arise, or might have been deduced by the triers of fact. Likewise, we think that some evidence to eke out the infirmity of judicial notice ought to have been offered, even should we assume that the child was conceived upon the first sexual access, since from this date to the birth of the child only 258 days elapsed. For we cannot take judicial notice of the viability of a child born 36 days, or even 22 days, short of the ordinary period of gestation, no more than we could notice that such period in exceptional cases may extend beyond ten calendar months. [Erickson v. Schmill, 62 Neb. 368.] We conclude that absent proof upon the point supra, the evidence touching the date of the promise of marriage was insufficient. III. The point of alleged insufficiency of the evidence as to the prior chastity of the prosecutrix resolves itself upon the facts shown into a mere question of credibility. There was much evidence Prior Chastity. both pro and con. It was therefore a jury question and, however convincing the countervailing evidence of a lack of the requisite chastity might appear, we are precluded by the jury's finding upon controverted facts from reversing the case upon this ground. We rule this point against defendant. IV. Defendant did not testify upon his own behalf upon the trial. Therefore, pursuant to the plain mandate of the statute any reference to his failure to testify is forbidden. [Sec. 5243, R. S. 1909.] In the Remarks of course of the argument the learned prosecutProsecuting ing attorney said to the jury that "the defendant had not stated anything in the case." Thereupon counsel for defendant objected to the remark, Attorney. State v. Drummins. stating same to the court in his objection, and asked that counsel for the State be reprimanded. This the trial court neglected to do, merely remarking in answer to the objection that he had not heard what counsel for the State had said. We think this remark of the prosecuting attorney violated both the letter and the spirit of the statute supra. We have held less obvious and pointed references to the failure of defendant to testify, to be reversible error. [State v. Snyder, 182 Mo. 462; State v. Weaver, 165 Mo. 1; State v. Moxley, 102 Mo. 374.] Neither of the above cases, nor the statute itself, is at all involved in the case of State v. Larkin, 250 Mo. 218. In the latter case defendant had testified in his own behalf, and it was under that state of facts ruled that comment upon his failure to cover any fact could be made by counsel for the State in argument, since such a situation does not fall within the statute which expressly forbids comment, where defendant fails to take the stand. It appears from the record that at the time the objectionable remark was made by the prosecuting attorney the official stenographer did not take it down as it fell from the lips of counsel. It is plain that the stenographer was not keeping a record of the arguments of counsel. The only way therefore in which the remark quoted above got into the record before us was through its being embodied in the objection of counsel for defendant, thus: "And thereafter, to-wit, in the course of the argument to the jury of Mr. James Anderson, counsel for the State, the following occurred, to-wit: "Judge Kelso: We object to the statement of counsel and ask the court to reprimand him for saying that the defendant hadn't stated anything in this case. "The Court: I didn't hear what he did say. "Counsel for defendant: We except to the ruling of the court." Learned counsel for the State insist that this showing is not sufficient. In short, it is contended that |