State v. Lebo
| Citation | 98 S.W.2d 695 |
| Decision Date | 17 November 1936 |
| Docket Number | No. 34842.,34842. |
| Parties | STATE v. LEBO. |
| Court | United States State Supreme Court of Missouri |
Appeal from Circuit Court, Dunklin County; James V. Billings, Judge.
Harry Lebo was convicted of rape, and he appeals.
Reversed and remanded.
James A. Bradley, of Kennett, for appellant.
Roy McKittrick, Atty. Gen., and J. E. Taylor, Asst. Atty. Gen., for the State.
By information filed in the circuit court of Dunklin county, appellant was charged with the crime of rape, in that he, on or about the 26th day of October, 1934, upon one Mae Bell Lebo, forcibly and against her will, feloniously did ravish and carnally know. Upon a trial, he was found guilty, and sentenced to imprisonment for a term of 25 years. After an unsuccessful motion for a new trial, appellant has perfected this appeal, but has filed no brief.
Appellant and prosecutrix are admittedly father and daughter, and on the date of the alleged offense Mae Bell was approaching her twentieth birthday, which occurred on December 25, 1934. We adopt and set forth, with minor alterations and additions, respondent's statement as a sufficient outline of the facts of the case (quotation marks omitted), viz.: The evidence on the part of the State tended to show that the defendant lived on a farm about eight miles southwest of Kennett, Mo. On the 26th day of October, 1934, the date of the alleged assault, the defendant and prosecutrix, Mae Bell Lebo, and her little brothers and sister left their home at about 6 o'clock to go to the show in Kennett, Mo., in a 1928 Whippet sedan which had been made into a truck. After the show they all returned to the Lebo home at about 10:30 o'clock, p. m. When they returned home the children, with the exception of Mae Bell Lebo, got out of the car, and the defendant punched the prosecutrix and said: "You s____o____b, if you get out I will go in the house and kill you." He then made her drive the car to the end of the (Eudora) hard road and down a little ways and then back, at which time the defendant threw the prosecutrix down in the front seat of the car after slapping her and hitting her in the face and jaw, he took her clothes off and overcome her resistance and had intercourse with her in the front seat of the car. "He just rode me there for about an hour and a half or two hours." Prosecutrix, after the assault, left the car and reached home at about 11:30; the defendant left the car and went in the other direction, south of where the car was sitting. Prosecutrix, on arriving home, told her mother that defendant had been whipping her ever since they left the house but did not tell her that he had raped her. Prosecutrix testified that the reason she did not complain to anybody about the assault was that she was afraid of defendant, and that he had threatened her life. Prosecutrix did not tell any one about the alleged rape until November 11, 1934, at which time she told a man in town, whose name she had forgotten, and also Rolla Chambers and the prosecuting attorney. Prosecutrix testified that the defendant had on a number of occasions forcibly had intercourse with her, the last offense before the one which the defendant was charged with on the 26th day of October was the Friday before, at which time the defendant forced her to have intercourse with him on a bed at home while her mother was out in the field. Prosecutrix, testified that defendant stated in the presence of her mother that she would have another kid by him and that she already had had one. Dave Childers testified on behalf of the State that on the 26th day of October, 1934, the date of the alleged offense, he lived a quarter and a half north of the west end of the Eudora road. On the night of the 26th of October he saw Harry Lebo and Mae Bell Lebo going west off at the end of the gravel road and then saw them turn around and drive back to the end of the road and park on the south side. He testified they sat in the car a few minutes but he did not go to find out what they were doing or saying; the next he saw was Harry Lebo leaving the car going south afoot, and Mae Bell leaving the car going east, he was about 125 or 150 feet from them at the time the car was turned and parked; he did not hear anybody "holler." Ivy Lebo, 13 year old sister of Mae Bell and daughter of the defendant, testified that on the night of the 26th when they got home from town she and Hubert, her brother, got out of the car and her father and Mae Bell went on down the hard road; she further testified that 3 or 4 weeks before this time she and her father and sister, Mae Bell, were out in the car and they stopped in a little lane where you go up to the Two-Mile School House; they were all drinking home brew and she laid down back of the car; at that time the defendant told Mae Bell to get on his lap and she commenced crying, he then told her to lay down on the car seat and later they drove on. Hubert Lebo, aged 15, son of Harry Lebo and brother of Mae Bell Lebo, testified that he remembered the night they went to the show and that they all came home together and that Mae Bell and his father went off in the car but they were not gone only about 20 minutes when Mae Bell came back. Five witnesses testified on behalf of the defendant in regard to his reputation for morality and being a law-abiding citizen. The defendant testified in his own behalf and denied having assaulted his daughter on the 26th day of October as charged in the information, or ever having assaulted her at any other time, or that he ever had any immoral conduct with his daughter. He further testified that the prosecutrix, in the presence of the sheriff, called him a G____ D____ s____o____b and said; "I have got my foot on you, and, you G____ D____ s____o____b____, I am going to see that your neck is broke before I get it off." Thomas F. Donaldson, sheriff of Dunklin county, testified that he had a conversation with the defendant on the day he was placed in jail in which the defendant, Harry Lebo, said, "If I got any from Mae Bell I didn't take it away from her." Fred Rigdon, deputy sheriff also testified that he was present when the defendant was talking to the prosecuting attorney and the sheriff and heard him say, "If I got any from Mae Bell I didn't take it away from her."
The grounds of the motion for a new trial take a rather wide range. Some of them may be summarily disposed of because they do not meet the requirements of the statute in that they are too general. Section 3735, R.S.1929, section 3735, Mo. St.Ann. p. 3275. The following assignments, stated in separately numbered paragraphs in the motion, are embraced within the classification just mentioned: "Because the verdict is against the law as declared in the instructions given by the court; Because the verdict is against the evidence; Because the court erred in failing to instruct upon all the law in the case; Because the verdict is excessive and the result of passion and prejudice."
I. Proceeding to a consideration of the matters sufficiently preserved for review, we take up the two grounds assigning error in failing to sustain appellant's demurrers, one offered at the close of the State's case and one offered at the close of the whole case. If there was any error in the overruling of the demurrer at the close of the State's case, it was waived by appellant offering evidence in his behalf. State v. Barr, 336 Mo. 300, 78 S.W.(2d) 104, and cases cited. However, in view of the disposition we find necessary to make of the case, and without detailing the reasons, we think it sufficiently appears from the statement of facts that the State made out a submissible case, and there was no error in refusing to...
To continue reading
Request your trial