The State v. Bowman

• Decision Date: 03 June 1919
• Citation: 213 S.W. 64,278 Mo. 492
• Parties: THE STATE v. WILLIAM G. BOWMAN, Appellant
• Court: Missouri Supreme Court

213 S.W. 64

278 Mo. 492

THE STATE v. WILLIAM G. BOWMAN, Appellant

Supreme Court of Missouri, Second Division

June 3, 1919

Appeal from Jackson Circuit Court. -- Hon. E. E. Porterfield, Judge.

Reversed and remanded.

Patrick T. O'Hern, Clarence Wofford and Bert S. Kimbrell for appellant.

(1) The court erred in admitting in evidence State's exhibit consisting of a Bible printed in the English language, to a page of which was attached by an ordinary pin a plain sheet of writing paper upon which was written the names and ages of the children of prosecutrix's mother, including the prosecutrix, the evidence disclosing that at the time of the births of the various children, including the prosecutrix the mother kept no family Bible in which was recorded the births of said children, that no record of any kind or character was kept, and that the entries upon said piece of paper were made from twelve to fourteen years after the birth of the prosecutrix. Hamilton v. Wabash Railway Co., 21 Mo.App. 156; State v. Neasby, 188 Mo. 470; State v. Miller, 70 Kan. 200; People v Mayne, 118 Cal. 516; Greenleaf on Evidence (16 Ed.), chap. 10, pp. 195 and 200; 9 Ency. Evid., pp. 738, 745; Stein v. Bowman, 13 Pet. (U.S.) 209; In re Colbert's Estate, 153 P. 1026; In re Peterson's Estate, 134 N.W. 760; 2 Wigmore on Evidence, sec. 1481, p. 1841; State v. Menard, 110 La. 1098; Vantine v. Butler, 240 Mo. 531. (2) The court erred in permitting the prosecutor to propound to the defendant and in requiring the defendant to answer over the exception of the defendant, the following questions, to-wit: "Q. Was that proper for you to run these young girls into this saloon, through the side door there? Q. You thought that was perfectly proper?" (3) The evidence is insufficient to sustain the conviction. State v. Hughes, 258 Mo. 264; State v. Donnington, 246 Mo. 343; State v. Tevis, 234 Mo. 276; State v. Goodale, 210 Mo. 275; Champagne v. Hamey, 189 Mo. 709; State v. Patrick, 107 Mo. 147; Sherwood's Commentaries, pp. 94 to 101. (4) The punishment assessed by the jury is excessive. (5) Under the facts of the case at bar, the court erred in refusing the instruction asked by defendant, on timely complaint. State v. Davis, 190 S.W. 298; State v. Donnington, 246 Mo. 355; Champagne v. Hamey, 189 Mo. 709; Sherwood's Commentaries, pp. 94 to 101; State v. Witten, 100 Mo. 528; State v. Wilson, 91 Mo. 410. Manifestly the refusal of this instruction was erroneous if it should be determined by the court that the evidence discloses a case of rape by force.

Frank W. McAllister, Attorney-General, and C. P. Le Mire, Assistant Attorney-General, for the respondent.

(1) The admitting in evidence of a Bible to a page of which was attached a written memorandum of the date of the birth of prosecutrix, was not reversible error. State v. Gulley, 272 Mo. 489; State v. Neasby, 188 Mo. 470; Beckham v. Nacke, 56 Mo. 549. (2) The court permitted counsel for the State to ask the defendant the following questions: "Q. Was that proper for you to run these young girls into this saloon, through the side door there? Q. You thought that was perfectly proper?" These questions were so grossly immaterial as to warrant scant consideration here, especially as the witness never gave a direct answer to either. (3) The evidence introduced was sufficient to sustain the conviction. State v. Taylor, 267 Mo. 48; State v. McBrian, 265 Mo. 604; State v. Mace, 262 Mo. 157; State v. Hughes, 258 Mo. 272; State v. Bowen, 247 Mo. 595; State v. Stackhouse, 242 Mo. 450; State v. Swain, 239 Mo. 728; State v. Scott, 214 Mo. 261; State v. Espenschied, 212 Mo. 223; State v. Yandell, 201 Mo. 662. (4) The punishment assessed was not excessive. Sec. 4471, R. S. 1909, as amended by Laws 1913, pp. 218, 219, and Laws 1917, p. 246; State v. Moore, 121 Mo. 519; State v. Williams, 77 Mo. 312. (5) Appellant's instruction was properly refused, being fully covered by instructions given. State v. Hicks, 178 Mo. 444; State v. Palmberg, 199 Mo. 243; State v. George, 214 Mo. 267. (6) Since the elements of force or consent do not enter into the offense charged, appellant's instruction was properly refused. State v. Volz, 269 Mo. 202; State v. Palmberg, 199 Mo. 253.

OPINION

FARIS, J.

Defendant was tried in the Criminal Court of Jackson County upon an information charging him with statutory rape committed upon a girl alleged to be under the age of fifteen years. The jury, having found him guilty, assessed his punishment at imprisonment in the State Penitentiary for a term of ninety-nine years. From the resulting sentence and judgment, he has in the usual way appealed.

This case was before us at a former term, whereat a sentence of imprisonment in the State Penitentiary for nine years was reversed and remanded for certain errors in the admission of testimony and in the cross-examination of the defendant. The facts of the case are abysmally sordid and indecent. These facts are sufficiently set forth in the report of the case upon the former appeal. See State v. Bowman, 272 Mo. 491, 199 S.W. 161, where these interested or curious may read them.

Such of the facts as we shall find it necessary to refer to on this review will be set forth by us in connection with our discussion of the law governing the several contentions made. The name of the prosecutrix is unimportant, and we shall therefore refer to her simply as "the prosecutrix."

Defendant urges manifold alleged errors upon our attention. Among these are: (a) Errors in the refusal of instructions asked by defendant; (b) errors in allowing the State to travel in its cross-examination of defendant, far afield from his examination-in-chief; (c) insufficiency of the evidence to support the verdict; (d) errors in the admission of evidence on the part of the State, and (e) the excessiveness of the verdict and sentence.

I. Defendant requested, and the trial court refused, to give the below instruction, to-wit:

"The court instructs the jury that unless you find and believe from the evidence beyond a reasonable doubt that on May 27, 1915, the date of the alleged assault, the prosecutrix was under the age of fifteen years, you will find the defendant not guilty."

The refusal of the above instruction was not error, because the court had already, in instructions one and four, which were given of his own motion, fully covered the point of prosecutrix's age, and the necessity for the jury to find beyond a reasonable doubt that she was under fifteen years of age when the act complained of occurred. It results that the refusal to give an instruction upon the point covered by the refused instruction was not error, and this contention must be disallowed.

II. Another instruction which defendant requested and the court refused to give reads thus:

"The court instructs the jury that if you find and believe from the evidence that the prosecutrix did not as soon as an opportunity offered complain of the alleged offense to others, but concealed it for a considerable length of time thereafter, then the jury should take this circumstance into consideration with all other evidence in determining the guilt or innocence of the defendant, and whether, in fact, a rape was committed or not."

The refusal of the above instruction, as we have a number of times ruled, was not error in this sort of case. [State v. Palmberg, 199 Mo. 233, 97 S.W. 566; State v. Hammontree, 177 S.W. 367.] We recognize keenly the difficulty and closeness of this point, and we appreciate fully the defendant's point of view, and the great force of his insistence. It presents a phase of the doctrine announced in the maxim "Falsus in uno, falsus in omnibus," for if prosecutrix's testimony is credible and is to be believed, she was forcibly ravished. If she was debauched by force and not by consent, human experience -- as chronicled in all of the books -- is that she would have lost no time in making complaint of the fact. Her failure promptly to complain, her age and environment regarded, may well cast doubt upon her story of force, and if her story as to the use of force is false, her entire story, perforce the maxim supra, is appreciably weakened.

But, by the express terms of the statute under which this prosecution was had, force is not a necessary element of the crime for which defendant was convicted. An instruction of the sort requested is therefore a comment upon the prosecutrix's testimony upon a point not within the issuable facts. If prosecutrix had been in law capable of consenting, and had consented, there would be no crime; but she was not so capable. The fact of timely complaint is only allowed to be shown in a case of rape by force in corroboration of the fact of force; because, as forecast, such timely complaint, in the light of human experience, is ordinarily incompatible with consent.

So may be said to run some of the arguments for and against the giving, in any case of statutory rape, of the sort of instruction which the court here refused to give. We cannot of course, state too strongly the distinction in this respect existing between the latter crime and rape by force. [See State v. Patrick, 107 Mo. 147, 17 S.W. 666.] Moreover, cases occur wherein prompt complaint would be excused by reason of prosecutrix's domination by fear, or by her environment. [State v. Baker, 136 Mo. 74, 37 S.W. 810.] Likewise, cases occur under this charge wherein the childish age of a victim would excuse the absence of prompt complaint, because of lack of sufficient intelligence to understand and appreciate the heinousness of the crime committed against her. Within the maze of exceptions, it will be seen, therefore, that great difficulty would be met in applying the proper rule to any given case of prosecution under the...