The State v. Bowen

• Decision Date: 19 February 1913
• Citation: 153 S.W. 1033,247 Mo. 584
• Parties: THE STATE v. ED BOWEN, Appellant
• Court: Missouri Supreme Court

153 S.W. 1033

247 Mo. 584

THE STATE v. ED BOWEN, Appellant

Supreme Court of Missouri, Second Division

February 19, 1913

Appeal from Carter Circuit Court. -- Hon. W. N. Evans, Judge.

Reversed and remanded.

L. O Neider for appellant.

Elliott W. Major, Attorney-General, and Ernest A. Green, Assistant Attorney-General, for the State.

(1) The most serious question in this case is that with reference to the sufficiency of the evidence as establishing the guilt of the defendant. At first glance the testimony would seem to be insufficient, but when it is carefully analyzed and all the essential elements of this offense considered with relation to the testimony offered, the evidence is amply sufficient to sustain the verdict of the jury. That some person committed rape on this mere child is evidenced by the birth of a child when she was but a few days over the age of thirteen years. Under such circumstances it was only necessary for the State by either direct or circumstantial evidence, to prove that the defendant was the person who committed the offense. Bill v. State, 5 Humph. (Tenn.) 155. The confessions or admissions of defendant are sufficient identification. 33 Cyc. 1488; State v. Icenbice, 126 Ia. 16; People v. Darr, 3 Cal.App. 50. Where there is substantial evidence tending to show defendant's guilt this court will not undertake to weigh the evidence, but will defer to the action of the jury in such matters. State v Smith, 190 Mo. 706; State v. Williams, 186 Mo 128; State v. Williams, 149 Mo. 500; State v. Tetrick, 199 Mo. 104. (2) Mrs. Ellen Burnham, a witness for the State in rebuttal, was asked if she had had a conversation with the mother of the defendant, in which Mrs. Bowen had told her that they had accused the defendant of being the father of Naomi's child, and that he had admitted it to Calvin Lane. When Mrs. Bowen was on the stand as a witness for the defendant, she had been asked, over the objection and exception of defendant's counsel, as to having this conversation with Mrs. Burnham and had denied having such conversation. Mrs. Bowen had previously testified that Mrs. Burnham had never asked her who was the father of the child. When Mrs. Bowen had testified positively that she did not know who was the father of Naomi's child, it was competent to ask her for the purpose of laying the foundation for impeachment, if she had not told Mrs. Burnham that the defendant had admitted that he was the father of the child. When she denied this conversation it was proper by way of impeachment to prove by Mrs. Burnham that such a conversation did occur. State v. Mulhall, 199 Mo. 212; State Forsha, 190 Mo. 324; Hannon v. Transit Co., 102 Mo.App. 216; State v. Gatlin, 170 Mo. 354; Rodan v. Transit Co., 207 Mo. 407; Schloemer v. Transit Co., 204 Mo. 99.

FARIS, J. Brown, P. J., and Walker, J., concur.

OPINION

FARIS, J.

Prosecution for statutory rape alleged to have been committed upon one Naomi Headrick, a female child under the age of fourteen years. The prosecution is based upon an indictment presented by the grand jury of Shannon county, Missouri, on September 26, 1911. The case was tried in the circuit court of Carter county, Missouri, to which county the venue was changed by an order made by the circuit court of Shannon county, upon the application of the defendant.

The case came on for trial in the circuit court of said Carter county at the April term and on the 10th day of April, 1912. The defendant was duly arraigned and entered a plea of not guilty. Thereupon, the case was submitted to a jury, which jury in due course returned a verdict of guilty against the defendant and assessed his punishment at imprisonment in the penitentiary for a term of ten years. Timely motions for a new trial and a so-called motion in arrest of judgment were filed and overruled, and following the latter action judgment and sentence were duly pronounced against defendant in accordance with the verdict of the jury. We assume since no supersedeas order was entered and since defendant now prosecutes this appeal as a poor person, that he is now confined in the penitentiary.

The testimony and other matters proper therein were preserved by a timely bill of exceptions, which was duly and legally made a part of the record, and which is before us. From this bill of exceptions the facts shown by the testimony upon the trial seem to be substantially these:

Naomi Headrick, upon whom the rape was charged to have been committed, was the step-daughter of the defendant and resided with defendant and defendant's wife, who was the mother of said Naomi, on a farm in Shannon county, Missouri. Said Naomi died in Shannon county on August 27, 1911, at the age of thirteen years and nine days. The cause of her death, as shown by the uncontradicted testimony, was peritonitis, superinduced by a miscarriage, wherein she was delivered of a foetus, apparently some five or six months advanced.

Dr. O'Dell, a witness for the State, testified that on the morning of August 20, about the middle of the day, he saw the girl Naomi professionally; found her suffering with an acute gastric disturbance of the stomach and bowels, indicating a cholera morbus condition, accompanied by vomiting and purging; that she was about five months advanced in pregnancy; but that he is not, and says that he could not be, certain as to the exact time. This witness saw her again on August 23 and found her bordering on peritonitis. He again saw her on August 25 and discovered that she had miscarried late in the afternoon of August 23; that she then had (that is, on August 25) a well-developed case of peritonitis. This witness saw her again on August 27; found her rapidly failing, and says that she died on that evening. This physician further says that peritonitis may often occur as a result of taking drastic and irritating medicine.

Dr. Chilton, a witness for the State, testified touching a consultation that defendant had with him as to the condition of Naomi; in this conversation defendant spoke of a swelling or dropsical condition from which she was suffering, stating to the doctor that this condition had existed for some four or five months, and that it had come on gradually. Being asked as to the girl's monthly periods, he stated that there had been five or six months during which these had not occurred, but that prior to that time she had been regular; defendant stated to this physician that his wife thought perhaps the girl was pregnant, but that he (defendant) didn't know anything about it. Questioned by the physician as to whether the girl had been keeping company with any boys, he said that she had not, and that there was no possibility of any boys having come there. Some medicine of an unnamed sort was given to Bowen by this witness for the girl; but the nature thereof (except the statement of the physician that it was harmless, her condition considered) does not appear.

James Tripp, a justice of the peace of Shannon county, testifying for the State, says in substance that on August 11, 1911, a short time before Naomi became ill, defendant told him that he had procured a bottle of calomel while he was in town and made inquiry of the witness Tripp as to how the same should be issued or dosed. This witness also testifies as to the escape of the defendant from the custody of persons to whom the witness Tripp, as justice of the peace, had delivered defendant, after the latter's arrest upon this charge.

Further there was uncontradicted evidence from other witnesses as to the fact that while in custody charged with this offense defendant escaped from his custodians and fled the country. Some months afterward defendant was found at Truman, Arkansas, passing under the assumed name of John Martin. He was arrested in Arkansas and brought back by the sheriff of Carter county prior to the trial. It may be said in passing and in fairness to the defendant, that he explains his flight upon the theory that he fled in order to escape mob violence, threats of which reached him for the first time a few minutes before his escape from the officers. As to the existence of this mob sentiment in the community and of reports thereof having reached defendant, he is corroborated by three other witnesses whom he offered, and who say in substance, that there was general talk in the community to the effect that defendant ought to be mobbed or hung, but that no one took any steps toward organizing such mob; though one of these latter witnesses states that he was informed before defendant fled that the mob was actually forming.

The record contains no evidence of actual access to Naomi Headrick by the defendant, nor are there shown any actions whatever on the part of the defendant toward Naomi indicating that his relations toward her were not those simply of a step-father to a step-daughter residing in his family. However, this exclusion of opportunity applies also to the other males in the community, since the record shows that the girl kept no company with the boys in the neighborhood, and that she "had no beaux," as one witness expresses it. It is shown, however, by one witness, that on the 28th of February, 1911, defendant and Naomi were together by themselves in a corn field for some two hours.

Outside of the facts above stated, the testimony upon which the State relies for a conviction was in its nature circumstantial and it consisted wholly in statements and admissions of the defendant, not amounting to absolute or definite confession of the fact.

Defendant is found on the day that Naomi was buried asking those present there to pray for him, and, putting it in their words, he said: "Pray for me and pray for me hard." This testimony and all of it comes from the relatives of defendant.

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