The State v. Horton

• Decision Date: 19 February 1913
• Citation: 153 S.W. 1051,247 Mo. 657
• Parties: THE STATE v. I. M. HORTON, Appellant
• Court: Missouri Supreme Court

153 S.W. 1051

247 Mo. 657

THE STATE v. I. M. HORTON, Appellant

Supreme Court of Missouri, Second Division

February 19, 1913

Appeal from Jackson Criminal Court. -- Hon. Ralph S. Latshaw, Judge.

Reversed and remanded.

Glen L Bruner for appellant.

(1) The verdict of the jury was against the evidence and should be set aside. Under the evidence the verdict indicated that the jury were actuated by bias and prejudice against defendant. (2) The court erred in not sustaining defendant's objections to the testimony of Dr. Stone, who examined the defendant and testified as to his findings. State v Newcomb, 220 Mo. 65; Constitution, art. 2, sec. 23. (3) The verdict is against the evidence and against the weight of the evidence. Johnson v. State, 17 Ohio 593; Hornbeck v. State, 35 Oh. St. 277; Higgins v People, 58 N.Y. 377; State v. Shettleworth, 18 Minn. 208; State v. Knoff, 45 N.H. 148; State v. DeWolf, 8 Conn. 93; 4 Blackstone, 213; Topalanck v. State, 40 Tex. 160; State v. Patrick, 107 Mo. 147.

Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.

(1) The trial court's rulings on evidence are in accordance with prior rulings of this court. There is only one exception that is worthy of note, in which appellant's counsel undertake to show that the Cason family had made threats against appellant. The court ruled that such threats were not admissible, for the reason that said threats were not brought home to Callie Cason. We think this ruling proper. While it may be shown in defense the prosecutrix's ill-feeling toward appellant, yet, in this case no such proof was offered. (2) The sufficiency of the evidence was for the jury. When there is substantial evidence to support the verdict, this court will not convert itself into a trier of the facts. State v. McCullough, 171 Mo. 574; State v. McGuire, 193 Mo. 227; State v. Williams, 199 Mo. 137; State v. Matthews, 202 Mo. .147. (3) Appellant cannot complain of the physical examination made of him by the physician. There is ample evidence in the record showing that he consented to such examination. Attorneys for appellant undertake to make the point that he was not then represented by counsel, but there is nothing in the record showing that he requested counsel, except one time at the jail, and the witness who had charge of him stated that the only reason they did not then stop to let appellant's counsel confer with him was because of the mob, and the fact that appellant was in danger of being taken from them and subjected to violent treatment.

BROWN, P. J. Walker and Faris, JJ., concur.

OPINION

BROWN, P. J.

Tried in the criminal court of Jackson county, defendant was convicted of rape, and appeals from a judgment of that court sentencing him to a term of twenty-five years in the State penitentiary.

Defendant (colored) was a school teacher in Kansas City, Missouri, and was charged with ravishing Callie Cason, one of his pupils, of the age of eleven years.

The testimony of the prosecutrix is to the effect that when school adjourned for the noon hour on May 25, 1911, the defendant requested her to remain and pour some water on his hands; that, after the other pupils had left the building, defendant locked the doors, placed her on a table and ravished her. She says that while defendant was making the assault she threatened to tell her father and mother; whereupon defendant promised to give her a nickel if she did not tell on him. She testified quite positively that defendant confined her in the school room all afternoon. Upon further examination she stated that while the assault was being committed four or five little girl-pupils returned and "peeped in" through the windows of the school house; that defendant saw these pupils, discontinued the assault and let the little girls into the school room; whereupon the defendant and all the pupils gathered at the home of Mrs. Dulin, a neighbor, to play upon a piano and practice singing for the closing exercises of school.

The crime, if committed by defendant, was committed on Thursday, May 25, 1911. Prosecutrix attended school on the following day (Friday), but did not inform anyone of the assault until about ten days later. On Thursday of the following week prosecutrix went to Kansas City, Kansas, to visit Mrs. Bell, a married sister, where she remained until the following Saturday evening. Prosecutrix further testified that she did not inform her sister of the assault while on this visit, but the sister (Mrs. Bell) testified that the prosecutrix did inform her of the crime while at her home. That she (Mrs. Bell) went home with prosecutrix Saturday evening intending to inform her mother of what had occurred. She says that she forgot to tell her mother until about eleven o'clock the next day (Sunday).

The mother of prosecutrix testifies that after being informed of the crime she called upon prosecutrix for an explanation; that prosecutrix "began to cry, and I asked her what she was crying for. She said: 'Mamma, If I tell you what is the trouble will you whip me?' I said: 'I won't if you tell me.'" Prosecutrix then informed her mother that she had been ravished by defendant. A physician was promptly called who made an examination of the prosecutrix and found that her hymen was torn and lacerated, and that she was suffering from gonorrhea.

Two of the little girls who prosecutrix testified had "peeped in" to the school house at the time of the alleged assault, were called by the State. One of them testifies that, when she reached the school house, just after lunch, neither the defendant nor prosecutrix were there; that they had gone up to Mrs. Dulin's to practice on the piano. The other girl testified that defendant and prosecutrix were standing inside the school house when she arrived there. That she saw no assault committed, but that the dress of the prosecutrix "was wrinkled."

After his arrest defendant was examined by two physicians at the request of a police captain. These physicians found that defendant was suffering from gonorrhea, apparently a very recent infection of that disease.

Prosecutrix further testified that defendant had whipped her while she was a pupil at his school, but she could not remember how many times, or why the whippings were administered.

Defendant denied the charge. His testimony is to the effect that when he dismissed his pupils at noon on May 25, 1911, he accompanied a little seven-year-old pupil to the home of her aunt, a Mrs. Edwards, about two blocks from the school house, eating his lunch as he walked along the street. That it was his custom to accompany this seven-year-old pupil home to prevent the older pupils from fighting or abusing her; that from Mrs. Edward's house he went to the home of Mrs. Dulin, a short distance from the school house. Mrs. Dulin is also colored and owned her own home and a piano. By her permission, and at defendant's request, his pupils assembled there to play upon her piano and to practice some songs which he intended should be sung at the close of school.

Mrs. Edwards and Mrs. Dulin corroborate defendant's testimony regarding his visit to their homes on the day of the alleged assault. Mrs. Dulin testifies that defendant arrived at her home about ten minutes after noon on May 25, 1911, while she and her husband were eating lunch; that his pupils came in as soon as they had time to go home for lunch. She and several other witnesses testified that prosecutrix came to Mrs. Dulin's on May 25, and joined in the noon-hour singing practice.

A colored man named Thomas (a teamster) testified that he arrived at the school house precisely at noon on May 25, 1911, and went into the building to use the telephone; that school had been dismissed, and that there was no one in the building at that time; that a few minutes later he went to Mrs. Dulin's and saw defendant and prosecutrix there.

Defendant testified that the mother of prosecutrix was angry with him because he had whipped her children, and because he was, in some way, connected with some charity contributions which the mayor had sent to him for distribution on the preceding Christmas. That she had said he should not teach that school another term.

Three witnesses testified to the good reputation of defendant prior to the time he was arrested on the present charge. One of these witnesses admitted that he had been convicted and confined in jail. This conviction took place several years before the trial of defendant. None of the character witnesses seemed to be intimately acquainted with defendant.

Such further evidence and facts as will be necessary to a full understanding of the case will be recited in our opinion.

OPINION.

I. Defendant complains of the trial court's instruction on the subject of alibi, but as this alleged error is not recited in defendant's motion for new trial, it is not before us for review. [State v. Conway, 241 Mo. 271, 145 S.W. 441.]

II. Defendant insists that the physicians who examined him while he was in custody should not have been allowed to testify to the fact that he was suffering from a venereal disease. To meet this insistence the State contends that the examination complained of was made with defendant's consent. We have read the record carefully and find that the "consent" consisted of the failure of defendant to object to the physical examination.

When a man is under arrest, without counsel, and, speaking metaphorically, is standing in the shadow of a policeman's club, it requires something much more substantial than silence to justify an invasion of his constitutional right not to be compelled to furnish evidence against himself.

If the evidence of the physicians had been objected to on the ground that the physical...