State v. Agee, 56485

• Citation: 474 S.W.2d 817
• Decision Date: 13 December 1971
• Docket Number: No. 1,No. 56485,56485,1
• Parties: STATE of Missouri, Respondent, v. Virgil Dale AGEE, Appellant
• Court: United States State Supreme Court of Missouri

Page 817

474 S.W.2d 817

STATE of Missouri, Respondent, v. Virgil Dale AGEE, Appellant.

No. 56485.

Supreme Court of Missouri, Division No. 1.

Dec. 13, 1971.

Motion for Rehearing or to Transfer to Court En Banc Denied

Jan. 10, 1972.

John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.

Daniel, Clampett, Ellis, Rittershouse & Dalton, Ransom A. Ellis, Jr., B. H. Clampett, Springfield, court-appointed for appellant.

SEILER, Judge.

Defendant appeals from his conviction of statutory rape, with punishment assessed by the jury at ninety-nine years, with judgment entered accordingly.

Defendant does not deny the prosecutrix, age twelve, was raped by someone. His first point is that the state's evidence was insufficient to identify him as the man. He stresses the inability of the girl to identify him and the difference between her description of her assailant and defendant's actual physical appearance. Nevertheless, there was other evidence, both direct and circumstantial, that he was the offender, ¹ and the question of identification was, without doubt, one for the jury.

Defendant next argues it was prejudicial for the court to give the conventional credibility of witnesses instruction along with an instruction about not considering his prior convictions as any evidence of guilt in this case, but only as affecting credibility. ² Defendant says these instructions lead the jury to concentrate on defendant's convictions, but overlook the prior convictions of his companion, who was one of the state's important witnesses; that the instructions thus presented the jury with a double standard; that in resolving the conflict of testimony between defendant (who testified he stopped his pickup truck upon hearing screams and went into the woods to investigate, there found the prosecutrix while coming to her aid and did not assault her in any way) and his friend and companion in the truck, who was called as a witness by the state and who also had several felony convictions (and who testified that defendant upon seeing the girl standing on the bridge, stopped his truck, spoke to her, parked the truck, got out and walked off with the girl), the jury would conclude, from the two instructions, that defendant's criminal record was important, but that of his companion was not, or at least, that defendant's was of greater importance; that, also the 'if any' part of No. 8 was disparaging and indicated the court doubted defendant's credibility to begin with.

We do not agree the instructions would lead a fair-mined jury to believe prior convictions were to be considered as to credibility of the defendant, but not as to the state's witnesses. No. 8 does refer specifically to defendant, but necessarily so, as it is for his specific benefit, to make sure the jury does not use the other convictions as evidence of guilt in the present case, and it is error to refuse such an instruction when offered by the defendant. State v. Coleman, (Mo.Sup. banc) 460 S.W.2d 719, 725. Had defendant asked for an instruction advising the jury of its right to consider the former convictions of any of the witnesses in determining the question of credibility, it would have been proper for the court to have given such an instruction, just as it has been held proper for the instruction to be given when requested by the state, where defendant's witnesses are the ones with the former convictions, State v. Everett, (Mo.Sup.) 448 S.W.2d 873, 877--78. Defendant made no such request, however.

On the point that the use of 'if any' in No. 8 constituted a disparagement and comment of doubt by the court as to defendant's credibility, it has twice been held otherwise, see State v. Wilkins, Mo., 100 S.W.2d 889, 896, and State v. Coleman, supra, 460 S.W.2d l.c. 725. Nonetheless, the 'if any' language is not appropriate, as there is nothing in the instruction with these words omitted which would indicate the court is ascribing either credibility or lack of credibility to the defendant. The words serve no necessary or useful purpose that we see and should not be used in such instructions in future cases.

Defendant contends instructions No. 6 and No. 7 injected false issues into the case and were misleading and confusing. No. 6 informed the jury that if defendant had sexual intercourse with the girl and she was under the age of sixteen years '. . . then it is immaterial whether she consented to such sexual intercourse or not, as such consent would be no defense to this charge'. Defendant rightfully notes that consent is not an issue in a prosecution for statutory rape, Sec. 559.260, R.S.Mo.1969, V.A.M.S. The court may instruct the jury concerning the legal effect of a specific fact, State v. Worden, 331 Mo. 556, 56 S.W.2d 595, 598. The court has specifically held proper the giving of similar instructions in prosecutions for statutory rape, State v. Haun, (Mo.Sup.), 324 S.W.2d 679, 683; State v. Worden, supra; State v. Nevitt, Mo., 270 S.W. 337, 339. Instruction No. 6 was not error.

Instruction No. 7 stated: 'One of the issues in this case, on which the state has the burden of proof, is whether the defendant was present at the time and place of the offense is alleged to have been committed. The defendant is not required to prove that he was elsewhere. If all the evidence or lack of evidence in this case leaves in your mind a reasonable doubt regarding the defendant's presence at the time and place the offense is alleged to have been committed then you must find him not guilty'. Defendant states he admitted at trial that he was present at the scene of this crime. Thus, there was no issue concerning whether he '. . . was present at the time and place the offense is alleged to have been committed', and he argues No. 7 led the jury to believe '. . . that they should acquit if the defendant was not present, but convict, if they found that he was present'; further, that it ignored his explanation of his presence in the area.

The general proposition of law is that an instruction should not be given in the absence of evidence to support it, State v. Amsden, (Mo.Sup.), 299 S.W.2d 498, 503. Such an instruction tends '. . . to authorize the jury to rove in reaching their verdict', State v. Higdon, banc, 356 Mo. 1058, 204 S.W.2d 754, 755. In this case, the girl testified that she encountered the defendant at about 6:00 p.m. and that she was repeatedly raped during a period of approximately two hours. She stated that the rape occurred in the woods about three hundreds yards from the truck. In contrast, the defendant's evidence was to the effect that he did not arrive at the bridge until about 8:00 p.m. Defendant stated that he heard screams while in the immediate area of the bridge and went down by the river to investigate. By fair implication, defendant denied being at the place where the rape took place, at least at the time when it occurred. He also denied being even in the vicinity of the bridge during much of the time that the crime was committed.

The contention is without support, and is overruled. The question of whether defendant was present at the time and place of the crime was a real, not a false, issue. See State v. Bruton, 253 Mo. 361, 161 S.W. 751, 755.

Defendant's next point is that the prosecuting attorney made numerous 'improper, inflammatory, and highly prejudicial' arguments during this summation to the jury. At trial, defendant did not object to these arguments, nor did he mention them in the motion for new trial. Defendant urges that the error be considered and appropriate relief granted pursuant to Rule 79.04, V.A.M.S., (which is inapplicable in an appeal in a criminal case, State v. Willis, (Mo.Sup.), 283 S.W.2d 534, 537), but we assume counsel meant to invoke ...