State v. Akers
| Decision Date | 12 October 1959 |
| Docket Number | No. 47160,No. 2,47160,2 |
| Citation | 328 S.W.2d 31 |
| Parties | STATE of Missouri, Respondent, v. Jesse AKERS, Appellant |
| Court | Missouri Supreme Court |
Cecil Block, St. Louis, for appellant.
John M. Dalton, Atty. Gen., William C. Blair, Sp. Asst. Atty. Gen., for respondent.
The defendant was convicted of incest and his punishment assessed at imprisonment in the penitentiary for a term of five years. He appealed but filed no brief. The state has fully briefed the case.
The information charges that on March 24, 1958, the defendant had sexual intercourse with his daughter. The motion for new trial charges, among other things, that the court erred in refusing to direct a verdict of not guilty and we shall first review the evidence.
The defendant, thirty-six years of age, was married and had three children, two boys, 12 and 8 years of age, and a daughter, 15 years of age, who is the prosecuting witness. The defendant, his wife and their three children, lived in the Wendell Pruitt Housing Project in St. Louis at 2429 Biddle Street. The defendant was licensed as a private watchman and employed by the St. Louis Housing Authority; he was assigned to duty at various housing projects. His hours of work began at four o'clock in the afternoon and ended at midnight. His wife was employed as a clerk-typist by the St. Louis City Welfare Office; her hours of work were from eight a. m. to four forty-five p. m. The two boys attended Saint Bridget's Parish School in the neighborhood where they lived. They usually attended an eight o'clock mass before going to school in the morning. The daughter attended Rosati-Kain High School which started at eight forty-five a. m. The defendant usually drove his wife to work in his automobile.
The evidence most favorable to the verdict tended to prove that on the morning of March 24, 1958, the defendant took his wife to work and returned to the house at about five minutes before 8:00 a. m. The boys had left for church and school so the daughter was alone in the apartment when her father returned. She told him she needed school money and he told her to look in the pocket of his uniform in the bedroom. The defendant followed her into the bedroom and 'started kissing and hugging' her. She protested, saying she would be late for school, but he pushed her onto the bed and had 'sexual relationship' with her; that is, he placed his penis in her vagina and completed the sexual relation. After the daughter redressed herself, the defendant drove her to school. She did not on that day tell anyone about the occurrence. She testified she had had other acts of sexual intercourse with her father over a period of two years prior to the act charged. The prosecutrix never told her mother about the sexual intercourse with her father, but about two weeks before March 24 she told Sisters at her school and a priest about the relationship. This information eventually was conveyed to a social worker with the Catholic Charities Association and then to the police.
The defendant was arrested on April 3, 1958. On being questioned by police officers, he admitted that he had wrestled with his daughter and placed his hands on her privates but denied he had had sexual intercourse with her. At the trial the defendant denied the charge and testified his daughter had threatened to 'get even' with him because he had reported her to the police as a missing person when she stayed overnight with a girl friend.
Dr. Parker Howard Word, a specialist in gynecology and obstetrics, examined the prosecuting witness on April 3, 1958, and testified that her hymen, the memberance in the front of her vagina, had been ruptured. When a female has her first normal sexual intercourse the hymen is usually ruptured. The doctor could not say how long previous to the examination the rupture had occurred.
In determining the sufficiency of the evidence to sustain a conviction, the appellate court considers as true the evidence favorable to the state and the favorable inferences to be reasonably drawn therefrom and rejects evidence contrary to and in conflict with such favorable evidence. State v. Gannaway, Mo., 313 S.W.2d 653, 656; State v. Harmon, Mo., 243 S.W.2d 326, 331.
The quantum of evidence necessary in this kind of criminal prosecution is described in State v.Nash, Mo., 272 S.W.2d 179, 183, and State v. Ball, Mo., 133 S.W.2d 414, 415, as follows: The uncorroborated evidence of the prosecutrix will sustain a conviction of incest or rape, but when the evidence of the prosecutrix is of a contradictory nature, or when applied to the admitted facts in the case her testimony is not convincing but leaves the mind of the court clouded with doubts, she must be corroborated, or the judgment cannot be sustained.
The evidence of the prosecutrix in this case is not contradictory or unconvincing. Although it does not need corroboration, it is supported by defendant's admission to the police and the doctor's testimony. It is not inconsistent with other facts and circumstances in evidence or with physical facts. The evidence is sufficient to sustain the judgment of conviction.
Three specifications of the motion for new trial are based upon the defendant's contention that the trial court erred in refusing to exclude evidence of previous acts of sexual commerce between the defendant and his daughter. As previously stated, the prosecutrix testified that she and her father had indulged in other acts of sexual intercourse over a period of two years prior to March 24, 1958. The incestuous act of March 24, charged in the information, was the only one submitted to the jury.
While proof of other distinct crimes is not ordinarily admissible, it is proper in a prosecution for incest to admit evidence of other acts of sexual intercourse committed by the defendant and the prosecutrix prior to the act upon which the prosecution is based 'as well also as any acts of 'lascivious familiarity between the parties, not amounting to actual intercourse, * * * since such evidence is of such a character as tends to make it probable that the parties did commit the specific offense charged. They constitute the foundation for an antecedent probability.'' State v. Pruitt, 202 Mo. 49, 100 S.W. 431, 432; State v. Hersh, Mo., 296 S.W. 433, 436; State v. King, 342 Mo. 975, 119 S.W.2d 277, 283; State v. Richardson, 349 Mo. 1103, 163 S.W.2d 956, 960; State v. Kornegger, 363 Mo. 968, 255 S.W.2d 765, 768. In State v. Boothman, Mo., 298 S.W.2d 370, and State v. Nash, Mo., 272 S.W.2d 179, there was evidence of prior incestuous acts, but the propriety of the admission of such evidence was not a question for decision. The trial court did not err in permitting reference to be made in the state's opening statement to these prior acts or in admitting evidence of them.
The defendant's next complaint concerns testimony given by Rhoda Noll, an employee of the Catholic Charities Association. First he says the court erred in permitting the witness to testify that the prosecutrix 'discussed the incidents with her and that she advised the girl to visit and seek the advise and assistance of a Priest who is connected with the Parochial School that the girl attended.' In disposing of this contention it is sufficient to say that the witness did not so testify. Further the defendant charges that the court erred in permitting the witness, Rhoda Noll, to testify, over the defendant's...
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