State v. Newcomb

• Decision Date: 18 May 1909
• Citation: 119 S.W. 405,220 Mo. 54
• Parties: STATE v. NEWCOMB.
• Court: Missouri Supreme Court

119 S.W. 405

220 Mo. 54

STATE v. NEWCOMB.

Supreme Court of Missouri, Division No. 2.

May 18, 1909.

1. CRIMINAL LAW (§ 417)—EVIDENCE—DECLARATION OF CO-CONSPIRATOR—ADMISSIBILITY.

Where there was nothing to show that the mother of accused was a co-conspirator in the commission of the crime, evidence of what the mother said or did after the commission of the crime and in the absence of accused was not competent against him.

2. CRIMINAL LAW (§ 406)—EVIDENCE—ADMISSIBILITY.

It is error to permit a physician, who examined accused pending a preliminary trial of another for the identical offense, to state in detail what he told accused during the examination.

3. WITNESSES (§ 379) — IMPEACHMENT—EVIDENCE—ADMISSIBILITY.

On a trial for rape of a child under the age of consent, accused may, by way of impeachment, show that prosecutrix for about a month after the commission of the alleged offense did not charge accused with the crime, but charged her father therewith, and so testified on the preliminary trial of the father, and to show the inducements held out to her to procure her to change her sworn testimony and to charge accused with the crime.

4. CRIMINAL LAW (§§ 419, 420)—EVIDENCE— HEARSAY.

Statements, made by a child under the age of consent about a month after she had been raped, as to the efforts made by the mother of accused to induce her to accuse her father of the offense, and her declarations that it was accused, and not her father, who had outraged her, were inadmissible as hearsay.

5. WITNESSES (§ 395)—IMPEACHMENT—CONFIRMATORY TESTIMONY.

Where, on a trial for rape of a child under the age of consent, accused showed by way of impeachment that the child first charged her father with the offense, and so testified on the father's preliminary trial, statements made by prosecutrix as to the efforts of the mother of accused to induce her to accuse her father, and that accused, and not her father, had outraged her, were not admissible as confirmatory of her testimony after she had been impeached.

6. CRIMINAL LAW (§ 393)—EVIDENCE—COMPELLING ACCUSED TO CRIMINATE HIMSELF— PHYSICAL EXAMINATION—CRIMINAL PROSECUTIONS.

While accused was in custody charged with the offense of rape, and while he was without counsel, the prosecuting attorney demanded an order from the justice for a physical examination of accused by a physician. The sheriff took accused into a private room for an examination. The term of the prosecuting attorney who had obtained the order expired a few days later, and he then became the counsel of another who had been charged with the identical offense. Held, that the admission of the testimony of the physician and the sheriff as to the results of the physical examination was in violation of the right of accused to be exempt from testifying against himself, guaranteed by Const. art. 2, § 23 (Ann. St. 1906, p. 158).

7. CRIMINAL LAW (§ 384) — EVIDENCE — REMOTENESS.

Where, on a trial for rape of a child under the age of consent, the evidence showed that the child suffered from a venereal disease, and that she at first charged her father with the offense, and that the father had admitted that he was afflicted with such disease on the day of the commission of the crime, evidence on the trial of another subsequently charged with the offense that the father had been afflicted with such disease about four months before the commission of the offense, but had recovered therefrom, was inadmissible because too remote.

8. CRIMINAL LAW (§ 785)—TRIAL—INSTRUCTIONS.

The court should charge that the jury "may take" into consideration the fact that accused or his wife, testifying in his own or in her husband's behalf, instead of using the formula "will take" such fact into consideration.

9. CRIMINAL LAW (§ 721)—MISCONDUCT OF PROSECUTING ATTORNEY—REFERENCE TO THE FAILURE OF ACCUSED TO TESTIFY.

It is error for prosecuting officers to refer to the failure of accused to testify by calling attention to the fact that accused, when on the stand, "did not deny" certain matters, thereby violating the positive command of the statute.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Richard Newcomb was convicted of rape, and he appeals. Reversed and remanded for new trial.

Faris & Oliver, for appellant. H. S. Hadley, Atty. Gen. (Jas. T. Blair, of counsel), for the State.

GANTT, P. J.

This is an appeal from the circuit court of Pemiscot county. Defendant was charged, by an indictment found by the grand jury of said county, with having, on the ____ day of December, 1906, committed upon one Frances McCants, a female child under the age of 14 years, the crime of rape. This indictment was filed on the 2d day of March, 1907. Defendant was tried at the November term, 1907, and a mistrial resulted. He was again put upon trial at the February term, 1908. The latter trial resulted in a verdict of guilty, and the assessment against him of the penalty of imprisonment in the penitentiary for a term of 30 years. From this verdict, and the resulting judgment and sentence thereon, the defendant, after his motions for a new trial and in arrest were overruled, took and now prosecutes this appeal.

The facts are substantially as follows:

Defendant with his mother and one William Rushton were at all the times mentioned engaged in a small mercantile business, and in operating a restaurant upon the Main street in Caruthersville. All of these persons, with the prosecuting witness and one Lucy Logston, occupied as a sleeping apartment a room in the rear of this little store. The prosecuting witness at the time of the perpetration of the alleged rape was under the age of consent, being of about the age of 10 or 11 years. She was well grown for her age, and, as her testimony abundantly indicates, was, her condition in life and environment considered, of rather unusual intelligence. She had been left by her father with defendant and defendant's wife and mother in order that she might attend school in town. Prosecutrix had been thus living with defendant and attending school for about one year at the time of the commission of the alleged rape. On the night of December 1, 1906, the father of the prosecutrix, one Frank McCants, was in town, and about 9 o'clock in the evening came to the place of business of the defendant, and slept there all night. McCants was at this time somewhat intoxicated, or, as one witness put it, "he had a dram." On this occasion McCants slept with his daughter, the prosecuting witness. On the 10th day of December following the prosecuting witness was observed by Mrs S. A. Newcomb, mother of the defendant, and a witness upon the trial for the defendant to be suffering from some physical difficulty, which produced in the gait of prosecutrix when walking a perceptible limp, as if she were crippled. At this time, and at the time of the occurrence of the conversation below recited, no one was present thereat, or in the room, so far as appears, upon the premises, except the prosecutrix and defendant's mother. Upon observing the physical impairment of prosecutrix's gait Mrs. Newcomb asked her if there was not something the matter with her. She at first made strong denial, but upon being most urgently pressed by Mrs. Newcomb, finally admitted that she was sore, and that she had been getting sore, as she expressed it, ever since her father had slept with her. Mrs. Newcomb thereupon examined the prosecutrix, and found the private parts of the latter in such condition as to the mind of the witness called for medical treatment. Mrs. Newcomb sent for a physician, Dr. Phipps, to whom she related prosecutrix's condition, and requested him to make an examination of her. This Dr. Phipps did, calling to his assistance, after a partial or cursory examination, another physician, Dr. Crowe. Both of these physicians testified upon the trial, and stated in their testimony that they found an enlargement and an inflammation of the private parts of the prosecutrix, and that such inflammation was caused, in their opinion, from gonorrhea. Dr. Crowe was permitted to say that such enlargement was produced in his opinion, by the commission upon the prosecutrix of a rape. No examination by means of a microscope was made, either of the prosecuting witness or of the defendant, or said Frank McCants, although every physician who testified admitted that such examination and the finding of the specific bacillus of gonorrhea is the only absolute test. These physicians admitted also that there are other diseases of the parts which produce similar symptoms and yield to similar remedies. These physicians administered, or prescribed, treatment of prosecutrix as for gonorrhea, and she recovered in a few days, but they would not definitely say she had gonorrhea, except as a matter of opinion.

Upon the confession of the prosecutrix to Mrs. Newcomb that her condition was caused by her father, Frank McCants, a warrant was procured for McCants, complaint therefor being made and sworn to by said Rushton, the partner of defendant, and the latter's mother and a witness for the state. Upon being arrested on this warrant on the 12th day of December, 1906, said McCants admitted to the sheriff who arrested him, and to the then prosecuting attorney, that he (McCants) had had the gonorrhea about two weeks before his arrest, but that he was at the time of his arrest well thereof. Said McCants was given a preliminary hearing about the 21st day of December, 1906, upon the charge of having committed the rape in question upon the prosecutrix, his daughter. Upon a full hearing he was bound over to await the filing of an information against him, without bail being allowed him. Upon this trial his daughter, the prosecuting...