24 S.W. 449 (Mo. 1893), The State v. Taylor

Citation:24 S.W. 449, 118 Mo. 153
Opinion Judge:Gantt, P. J.
Party Name:The State v. Taylor, Appellant
Attorney:Scott Ashton and J. S. Brooks for appellant. R. F. Walker, Attorney General, Morton Jourdan, Assistant, and Marcy K. Brown, Prosecuting Attorney, for the state.
Case Date:November 21, 1893
Court:Supreme Court of Missouri
 
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Page 449

24 S.W. 449 (Mo. 1893)

118 Mo. 153

The State

v.

Taylor, Appellant

Supreme Court of Missouri, Second Division

November 21, 1893

Appeal from Jackson Criminal Court. -- Hon. Jno. W. Wofford, Judge.

Reversed and remanded.

Scott Ashton and J. S. Brooks for appellant.

(1) The court erred in refusing to give instructions numbered 9 and 9a of the instructions asked by defendant. They properly stated the law as to the defense of an alibi. 2 Thompson on Trials, sec. 2440; McLain v. State, 18 Neb. 160; Campbell v. People, 109 Ill. 565; State v. Edwards, 109 Mo. 315. (2) The court erred in not granting a new trial because of the inflammatory language of the prosecuting attorney, who stated in his closing argument to the jury, "All the sixteen year old girls and the fathers of all girls in Jackson county whisper to you to-day to convict this man." Haynes v. Trenton, 108 Mo. 133; State v. Jackson, 95 Mo. 653; Conn v. State, 11 Tex.App. 400. (3) The court erred in permitting officer Thomas to state to the jury the ground of his feeling against the defendant. Butler v. State, 34 Ark. 480; People v. State, 62 Ala. 237; Chelton v. State, 45 Md. 570. (4) The court further erred in permitting the witness Copeland to tell that defendant got ten cents from him thereby permitting the state to prove an additional and different crime. (5) The verdict is contrary to the evidence.

R. F. Walker, Attorney General, Morton Jourdan, Assistant, and Marcy K. Brown, Prosecuting Attorney, for the state.

(1) The testimony of officer Thomas was competent. 1 Bishop on Criminal Procedure [3 Ed.], secs. 118-126; State v. Leabo, 89 Mo. loc. cit. 258; Revised Statutes, 1889, sec. 4115; State v. Keele, 105 Mo. loc. cit. 42; State v. DeMosse, 98 Mo. 342; State v. Jackson, 99 Mo. loc. cit. 63; 1 Bishop Cr. Law, secs. 995, 996. (2) The extent to which parties may pursue even collateral matters, in the examination of witnesses, for the purpose of establishing the prejudice or feelings of a witness toward the parties, rests largely in the discretion of the trial court, which will not be too severely reviewed by the higher tribunal. Ellsworth v. Potter, 41 Vt. 685; Powers v. Leach, 26 Vt. 270. (3) Any efforts of a defendant shortly after the commission of a crime to escape, or to evade or avoid arrest, or to elude justice, and all acts done toward consummating such escape, or evading such arrest, have always been held admissible as creating a strong presumption of guilt. 1 Bishop on Criminal Procedure [3 Ed.], sec. 1250; State v. Moore, 101 Mo. loc. cit. 339; State v. King, 78 Mo. loc. cit. 551; State v. Williams, 54 Mo. 171. (4) It is always competent for the state to show all the acts of a defendant having any tendency to prove or bearing upon his guilt, even though such acts involve the commission of another and totally different crime. State v. Rider, 95 Mo. loc. cit. 485; State v. Williamson, 106 Mo. 163; State v. Greenwade, 72 Mo. 298; 1 Bishop on Criminal Procedure [3 Ed.], secs. 1126-1128, 1129. 2 Bishop on Criminal Procedure [3 Ed.], secs. 261, 428. (5) The court did not err in its ruling on the instructions, and the evidence is amply sufficient to support the verdict. (6) It was improper to ask witness if he had been arrested and put in jail for stealing; though to show his conviction of that offense would have been proper. State v. Douglass, 81 Mo. 234; State v. Rugan, 68 Mo. 214; State v. McGraw, 74 Mo. 573; State v. Lewis, 8 Mo. 110; State v. Jennings, 81 Mo. 185; State v. Howard, 102 Mo. 142; State v. Taylor, 98 Mo. 240. (7) The instructions on the question of alibi were complete, correct and in the forms approved by this court. State v. Rockett, 87 Mo. 668; State v. Johnson, 91 Mo. 442; State v. Sanders, 106 Mo. 195; State v. Shroyer, 104 Mo. 448; State v. McCoy, 111 Mo. 517. (8) The same doctrine has been approved in State v. Sutton, 70 Iowa 268; State v. Reed, 62 Iowa 40. (9) A general instruction to acquit if a reasonable doubt exists is sufficient. State v. Wheeler, 108 Mo. 658; State v. Dunn, 18 Mo. 419; State v. Crawford, 34 Mo. 200; State v. Rockett, supra; State v. Elliot, 98 Mo. 151; State v. Whalen, 98 Mo. 222; State v. McKinsey, 102 Mo. 630. (10) Alibi is as any other defense and governed by same rules. State v. Sanders, supra; State v. Johnson, supra; State v. Jennings, supra; State v. Rockett, supra; People v. Levine, 85 Cal. 41; People v. Wong Ah Foo, 69 Cal. 182; People v. Lattimore, 86 Cal. 403; State v. Reed, 62 Iowa 40; State v. Kline, 54 Iowa 185; State v. Red, 53 Iowa 70; State v. Blunt, 59 Iowa 469. (11) The rule is that no instruction need be given as to alibi, for the reason that the same is fully covered by the reasonable doubt instruction as usually given. State v. Shroyer, 104 Mo. 448; State v. McCoy, 111 Mo. 517; Ayres v. State, 21 Texas App. 399; McAfee v. State, 17 Texas App. 131; State v. Sutton, 70 Iowa 268; State v. Cross, 68 Iowa 180; State v. Stewart, 52 Iowa 284.

OPINION

[118 Mo. 157] Gantt, P. J.

The defendant, a negro man, was indicted in the criminal court of Jackson county, for rape upon Lulu Butcher, a white girl about sixteen years old. He was convicted and sentenced to the penitentiary for fifteen years.

The testimony tends to show that on the night of September 25, 1891, at Kansas City, Missouri, Lulu Butcher, a young white girl of sixteen years was returning to her home, in the southern part of that city, from a dance. With her was a young man or boy, Ed. Copeland, of about the same age, who was acting as her escort. They were walking, the street cars having ceased to run for the night. When they reached a point on Grand avenue, between Twenty-sixth and Twenty-seventh streets and near the Union cemetery, a man, whom they afterwards identified as defendant, stepped out from the shadow on the roadside and placed a pistol at the head of young Copeland, who was entirely unarmed, and compelled him to throw up his hands. He then proceeded to search his pockets. The robber then tied Copeland's hands behind his back and forced him and Miss Butcher, under threats, to leave the road or street and go down into a depression, on the side of, but near to, the road. Then he either threw Copeland down or compelled him [118 Mo. 158] to lie down. He ordered the girl to lie down, and then and there committed the rape. In her testimony she admits she made no outcry, or resistance because she was afraid he would kill her if she did.

On the part of defendant it was shown that a Mrs. Holmes resided on the lot adjoining the cemetery, and that there was gaslight in the vicinity. The dimensions of the cemetery are not given. The defendant was shown to be a man six feet in stature. After the crime was perpetrated her assailant permitted Miss Butcher and young Copeland to return to her home, which she reached about one o'clock the next morning. She at once told her mother, and on this complaint, the defendant was arrested the next day and was identified by both Miss Butcher and Copeland.

Two other witnesses, Doc. Miller and Police Officer Thomas, testified to seeing defendant in that part of the city later in the night, or early morning of Friday. The officer hailed him on the approach of the bridge on the Belt Line railroad, near the Kansas state line, inquiring what he was doing out so late that night. After a moment's conversation, and without warning, the defendant fired his revolver at the officer; the ball passing through a portion of his clothing and grazing his club and scabbard.

The defendant

Page 450

relied upon an alibi. He testified that he spent all that night at the pool room of John Talbott; that DeWolf, a mechanic, was there repairing the tables, and that Talbott had employed him to assist about the place, and to remain there all night, because there were no locks upon the door; that Talbott left the money with him to pay DeWolf when he finished the job; that he remained and did pay DeWolf. Talbott testified that when he left the room that night, he left Taylor, the defendant, in charge, with money [118 Mo. 159] to pay DeWolf; that it was then between twelve and one o'clock. DeWolf fully corroborates Talbott as to the fact of defendant's presence at the pool room that night and says he left defendant there when he finished the tables; that he thinks it must have been two o'clock from the fact that the street cars stopped running at twelve o'clock, and he thinks they had been stopped, at least two hours. This pool room was at the corner of Nineteenth and Walnut streets. If this evidence is to be credited, it shows a complete alibi, as it covers the time of the rape, fully, and places defendant at a considerable distance from the place of its perpetration.

The other facts and the instructions complained of will appear in the further discussion of the case.

I. There was sufficient evidence to justify the verdict of the jury, if credited by them.

II. Counsel for defendant in the cross-examination of the state's witness, Miller, asked this question: "After this thing occurred were you not arrested for stealing billiard balls from Boulander's saloon, and sent to jail?" On the objection of the prosecuting attorney, the court ruled the witness need not answer. The defendant was entitled to have the question answered. The evident purpose of the interrogatory was to discredit the witness. In such a case the mere fact that it touched upon a conviction which must have been of record, is not sufficient to exclude it. Wharton on Criminal Evidence, in section 474, states the rule as follows: "In a leading case, Lord Ellenborough, C. J., compelled a witness to answer whether he had not been confined, for theft, in jail; and, on the witness's appealing to the court, said 'If you do not answer I will send you there.' In this...

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