State v. Bailey
| Decision Date | 15 March 1939 |
| Docket Number | 36236 |
| Citation | 126 S.W.2d 224,344 Mo. 322 |
| Parties | The State v. Howard Bailey, Appellant |
| Court | Missouri Supreme Court |
Appeal from Dent Circuit Court; Hon. William E. Barton Judge.
Affirmed.
Roy McKittrick, Attorney General, and Wm. Orr Sawyers, Assistant Attorney General, for respondent.
(1) Points in motion for new trial which are general and without particularity save nothing for consideration on appeal. State v. Shawley, 67 S.W.2d 86, 334 Mo. 352. (2) The demurrer at the close of the State's case was waived when defendant offered evidence in his defense. State v Jackson, 283 Mo. 18, 222 S.W. 748. (3) There was substantial evidence to support the verdict, hence demurrer at close of whole case was properly overruled. State v Beaghler, 18 S.W.2d 426; Sec. 3662, R. S. 1929; State v. Creighton, 52 S.W.2d 562, 330 Mo. 1176; State v. Mitchell, 252 S.W. 384. (4) The conduct of the sheriff in handling the jury was not prejudicial to the defendant. State v. Sebastian, 215 Mo. 90, 114 S.W. 522; State v. Cooper, 85 Mo. 261; State v. Underwood, 57 Mo. 52; State v. Malone, 62 S.W.2d 913, 333 Mo. 594. (5) The Circuit Court of Dent County, to whom the cause was removed on change of venue, had jurisdiction over the cause. Radil v. Sawyer, 85 Neb. 235, 122 N.W. 980; State v. Gabriel, 88 Mo. 635; State ex rel. Sawyer v. Kelly, 48 S.W.2d 866, 330 Mo. 143; State v. Myers, 322 Mo. 51, 14 S.W.2d 447; State v. Allen, 267 Mo. 58, 183 S.W. 329; State v. Dyer, 139 Mo. 209, 40 S.W. 768; Cole v. Cole, 89 Mo.App. 234; Sec. 3651, R. S. 1929. (6) Failure of the court to offer instructions on alibi was not error in this cause of action. State v. De Shon, 68 S.W.2d 810, 334 Mo. 862.
The appellant was convicted of statutory rape upon Pearl Summers, a girl fifteen years old, in the Circuit Court of Dent County on change of venue from Shannon County, and his punishment assessed by the jury at imprisonment in the penitentiary for two years. He has filed no brief in this court. His motion for new trial in the circuit court complains: that the State's evidence was insufficient to make a prima facie case; that the sheriff intruded upon the deliberations of the jury; that the Circuit Court of Dent County acquired no jurisdiction of the case because the proceedings by which the venue was transferred thereto were void; that all the instructions given for the State were erroneous; and that the court failed to give an instruction on appellant's alibi defense.
The appellant resided near Hartshorn, and had served as constable of his township in Shannon County for five or six years. He was a young bachelor and had been going with a number of the girls in that vicinity during the times here involved. He had known the prosecutrix for two or three years and had had social contacts with her five or six times. But he said these were not sought by him, and happened through his meeting her at church or school dinners, or dances, whence he would take her home at her request, her sister usually accompanying them. From indications in the record the prosecutrix and her family were poor and illiterate. Her father was a farmer, but she was born while the family were living in a lumber camp. Her sister worked in the home of a neighboring family.
The prosecutrix testified she and her sister Ethel first met the appellant at church in 1934 and went to a dance with him. Later, in November, 1934, both girls attended a pie supper at Hartshorn school. On appellant's invitation they permitted him to take them home in his Ford roadster. First he delivered Ethel to the home of "Wint" Deatherage where she lived and worked. Then he and the prosecutrix continued toward the latter's home, a distance of three miles. On the way, at appellant's solicitation she got out of the car and had sexual intercourse with him. This was in Shannon County. On a subsequent occasion the appellant took the prosecutrix home from a dance, his sister accompanying them. There was a mud hole in the lane leading to the prosecutrix's home about a quarter of a mile from the house. The appellant said he couldn't drive his car through it, so he left his sister in the car and walked with the prosecutrix to her home, having intercourse with her on the way. Still later on their way back from a Young People's Meeting at Black Valley Church they committed the sexual act.
The prosecutrix went to a Fourth of July picnic at Bear Claw in 1935, with a man named Fred Helton. That was 15 or 20 miles from her home. According to her testimony she had met the appellant's sister at Hartshorn the day before the picnic and the latter invited her to stay at the home of appellant's family the night of the picnic. That evening she rode to the Bailey home with the appellant, his girl friend, his mother and sister, in appellant's car, and spent the night there. The next morning the appellant offered to drive her as far as Hartshorn. He was living in a house not far from the Bailey home, and stopped there on this trip, inviting her in. This was in Texas County. She refused but he compelled her to do so, holding his pistol in his hand, and there ravished her. As a result of this intercourse in July, 1935, she became pregnant, according to her testimony. On former occasions the appellant had used a contraceptive device. The charge in the information is based on the first intercourse, after the pie supper at the Hartshorn school in November, 1934.
After the ravishment of the prosecutrix on July 5, the appellant took her -- not to Hartshorn as she testified he started out to do, but -- to her home in the country five miles northeast of Hartshorn. The prosecutrix did not tell her family of her ravishment, but about a month later the mother discovered her condition and some two months after that took her to Hartshorn, informed appellant of her pregnancy, charged him with responsibility therefor, and asked what he was going to do about it. The appellant disclaimed any guilt, so the mother and daughter went to the prosecuting attorney the same day and had a complaint issued charging appellant with rape in November, 1934.
The corroboration of the prosecutrix's testimony came mostly from members of her family. Her father and mother testified as to her age and the family history. The latter also related about the appellant's bringing the prosecutrix home on July 5, and about confronting him thereafter and charging him with responsibility for her daughter's pregnancy. Ethel Summers, sister of the prosecutrix, told of accompanying her and appellant as far as the home of "Wint" Deatherage after the school entertainment in the fall of 1934 and said the other two continued on in the direction of the prosecutrix's home. (It was on this trip that the rape charged was perpetrated.) The witness fixed the time of the trip as the last of October or first of November, 1934, but stated the school room was decorated with paper representations of turkeys and other things. The appellant admitted he took the prosecutrix home from a dance on one occasion when his sister was along but said that was in March, 1935, the last time he went with her; and denied they encountered a mudhole on the way, and that he walked from there with the prosecutrix to her home.
Speaking generally, the testimony for the defense in addition to that already mentioned, was as follows: The appellant denied ever having had sexual intercourse with the prosecutrix; and denied there was a Thanksgiving entertainment at the Hartshorn school in November, 1934, from which he accompanied the prosecutrix and her sister to their homes. On the contrary, he said the pie supper was in October for Hallowe'en, and that he did not escort the two Bailey girls home on that occasion, but took a Mrs. Tom Smith and her children. Mrs. Smith, a relative of the prosecutrix, lived in Hartshorn and her children took part in a program at the supper. She corroborated appellant on all the foregoing, as did Mrs. Ruthene Jordan, teacher of the school, and Andy P. Johnson, sheriff, with respect to the time and nature of the entertainment. On the other hand Willis Mullens, a director of the school, after consulting the school clerk's record, and also W. L. Stoops and the prosecutrix (being recalled) all said the pie supper was held the week before and in celebration of Thanksgiving.
Mrs Bailey, mother of the appellant testified that though she had never seen the prosecutrix before, yet the latter at the Bear Claw picnic in July, 1935, practically invited herself to spend the night with the Bailey family, and the next morning hinted, pouted and complained until the mother made the arrangement by which the appellant took her home. The sister of appellant, who was connected with several incidents mentioned in the testimony, did not testify. The appellant said he did not go with the prosecutrix after March, 1935, which was some six months before she had him arrested; that he did go with other girls; and that the prosecutrix went publicly with at least three other young men (which she admitted). He said she seemed to be mad because he was squiring other women, and the theory of the defense was that in retaliation for this she instigated the prosecution. Mrs. Tom Smith, already mentioned, testified that in the Summer of 1936 she asked the prosecutrix why she had had the appellant arrested instead of the guilty party, and the latter replied it was because she liked appellant best. The appellant declared the prosecutrix's story that he drove her to his lodging place not far from the Bailey home and there ravished her on the morning of July 3, 1935, was incredible and physically impossible, because that house was not on the road to Hartshorn, and to have done it he would have had to drive on another...
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