State v. Baker

• Court: Missouri Supreme Court
• Writing for the Court: White, J.
• Citation: State v. Baker, 300 S.W. 699, 318 Mo. 542 (Mo. 1927)
• Decision Date: 12 December 1927
• Docket Number: 27964
• Parties: The State v. Rex Baker, Appellant

300 S.W. 699

318 Mo. 542

The State v. Rex Baker, Appellant

No. 27964

Supreme Court of Missouri

December 12, 1927

Appeal from Butler Circuit Court; Hon. Charles L. Ferguson Judge.

Affirmed.

North T. Gentry, Attorney-General and J. D. Purteet Special Assistant Attorney-General, for respondent.

(1) No error was committed in permitting the State to indorse the name of Dr. I. N. Barnett on the information during the trial of the cause. Indorsement of the names of witnesses on the information during the progress of the trial lies in the sound discretion of the trial court. In the absence of anything in the record to show that the trial court abused his discretion, this court will not disturb the ruling. State v. Barrington, 198 Mo. 70; State v Lassieur, 242 S.W. 900; State v. Glon, 253 S.W. 364; State v. Hewitt, 259 S.W. 773; State v. Glenn, 262 S.W. 1030; State v. Jackson, 186 S.W. 990; State v. Ivy, 192 S.W. 733; State v. Webb, 205 S.W. 187; State v. Kehoe, 220 S.W. 961; State v. Peak, 292 Mo. 257. (2) Assignment of error in permitting witnesses to testify in the cause without their names being indorsed on the information, presents nothing to this court for review, for the reason that no affidavit of surprise or application for a continuance was filed. State v. Whitsett, 232 Mo. 526; State v. Lawson, 239 Mo. 591; State v. Ferguson, 278 Mo. 134; State v. Lee, 231 S.W. 622; State v. Howerton, 228 S.W. 746. Indorsement of rebuttal witnesses on the information during trial is in the sound discretion of the trial court. (3) The second reason in the assignment to the effect that the foregoing witnesses were permitted to testify after the rule excluding witnesses for the State and defendant had been invoked, and after said witnesses had remained in the court room during the trial of said cause, is without merit. The record contains no evidence to show that the aforesaid witnesses had remained in the court room throughout the trial of said cause. Allegations in the motion for a new trial do not alone prove themselves. State v. Williams, 263 S.W. 197; State v. Baird, 297 Mo. 227; State v. Creeley, 254 Mo. 397. (4) The record does not show that the jury or any members thereof were permitted to separate without being in charge of the sheriff or one of his deputies; or that the members of said jury during the trial and over night were permitted to attend a revival meeting which was in progress at the Christian Church in Butler County. The record does not contain anything which would indicate to a stranger to the trial that the prosecuting attorney ordered the arrest of a state witness during the trial of the cause and in the presence of the jury, for the crime of perjury. Allegations in a motion for new trial do not prove themselves. State v. Williams, 263 S.W. 197; State v. Baird, 297 Mo. 227; State v. Creeley, 254 Mo. 397. (5) Evidence of acts of statutory rape prior to the alleged offense is competent and admissible to prove the act charged in the information. State v. Cason, 252 S.W. 689; State v. Guye, 299 Mo. 367. (6) The trial court committed no error in permitting the prosecuting attorney on cross-examination of defendant's character witnesses to elicit the fact that defendant's house-boat had been searched for illicit liquor, under authority of a search warrant. Such cross-examination is largely within the discretion of the trial court. State v. Phillips, 233 Mo. 305; State v. Harris, 209 Mo. 443. It is permissible to inquire of the character witnesses whether they have heard such and such rumors relating to the defendant, rumors of crimes or other acts which would reflect upon his character, in order to determine upon what the witness bases his judgment as to the reputation of the defendant. State v. Brown, 181 Mo. 213; State v. Parker, 172 Mo. 207; State v. Crow, 107 Mo. 346.

OPINION

White, J.

The appeal is from a judgment in the Circuit Court of Butler County, following a verdict of guilty on the charge of statutory rape.

Rex Baker, the defendant, on the fourth of August, 1926, became the owner of a house-boat on Black River in Butler County, and continued to own that boat until the twenty-eighth of August, when he was arrested. The evidence for the State tends to show that during that period Arminta Sims, a girl fourteen years of age, lived with him on the house-boat. At the same time and in the same house-boat one Cole Ward and a girl named Fleta Belts lived together. According to the testimony of Arminta Sims, the defendant was away only three or four nights in that period and during the rest of the time he slept with her on the house-boat, while Cole Ward slept with Fleta Belts. Before the purchase of the house-boat the defendant had stayed with her at two different hotels. In one of them he had registered as R. F. Bacon and wife. The prosecutor had Arminta say specifically that Rex Baker had sexual intercourse with her each night she stayed on the boat.

The defendant succeeded in showing that the girl had a bad reputation, but the evidence is not clear as to whether that reputation was acquired before or after her association with the defendant. At any rate, she was a waif with no home; a piece of human flotsam drifting before the winds of chance. She lived in extreme proverty. Her father, a worthless fellow, took no care of his family. He drove her away from home and swore it was on account of her conduct, but the evidence tended to show it was because he did not want to support her. She said she pretended to think a great deal of Rex, but that she didn't. She stayed with him on the boat because she had no place to go. She is spoken of in the evidence as the "little girl." She must have been small of her age; undeveloped, ignorant and helpless. The prosecutor was at pains to have her say that she understood the words used to describe the crime. Her pathetic condition doubtless influenced the jury in inflicting a heavy punishment, notwithstanding her ill repute.

The defendant denied that he sustained any improper relations with the girl; said that he kept her, along with the other girl, on the boat to do the work. Mrs. Baker, defendant's wife, testified that she took pity on the girl, because of her scant clothing and general helplessness and made clothes for her; that her husband was away from home only two or three nights while he owned the boat. The effect of the defendant's evidence was that the taking in of the girl was purely a charitable act.

The defendant tendered the issue and, with indifferent success, endeavored to show that he possessed a good reputation. The most that he could bring out in that respect was that the witnesses had never heard anyone give him a hard name. As one witness put it: "Some would say one thing, some would say otherwise." The State offered evidence tending to show that his reputation was bad, and on cross-examination of his character witnesses made it quite clear that he was engaged in bootlegging. It developed that he had gone by an assumed name -- Finley -- which he offered to show was his middle name. Some of the questions asked intimated that previously he had had another wife, and doubt was cast upon the validity of the later marriage. The jury found him guilty and assessed his punishment at five years in the penitentiary.

I. Appellant filed no brief here. In the motion for new trial error is assigned to the ruling of the court permitting the State's attorney to indorse on the information during the progress of the trial the name of Dr. I. N. Barnett. After the arrest of the defendant the girl was taken to a detention home where she was kept until the trial. While on the stand in re-cross examination by defendant's counsel she said she had been examined by Dr. Barnett. Thereupon the prosecutor asked leave to place the name of Dr. Barnett on the information. Defendant's attorney objected, asserting that to permit the Doctor to testify would be a surprise and he would not be in position to meet the testimony. ...