State v. Baker

• Decision Date: 09 December 1968
• Docket Number: No. 53540,No. 2,53540,2
• Citation: 434 S.W.2d 583
• Court: Missouri Supreme Court
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Leonard BAKER, Defendant-Appellant

Page 583

434 S.W.2d 583

STATE of Missouri, Plaintiff-Respondent, v. Leonard BAKER, Defendant-Appellant.

No. 53540.

Supreme Court of Missouri, Division No. 2.

Dec. 9, 1968.

Norman H. Anderson, Atty. Gen., Jefferson City, William A. R. Dalton, Sp. Asst. Atty. Gen., Springfield, for respondent.

Joe Welborn, Bloomfield, for appellant.

FINCH, Presiding Judge.

The information herein charged under § 563.220, RSMo 1959, V.A.M.S., that defendant on the _ _ day of December, 1966, committed incest by committing fornication and having sexual intercourse with his daughter, Joyce Lee Baker. Defendant was convicted and sentenced to imprisonment for five years and he appeals.

Defendant questions the sufficiency of the evidence to make a submissible case. We state the evidence necessary to a determination of that question. In so doing, we treat as true the evidence favorable to the state, including favorable inferences reasonably to be drawn therefrom. State v. West, Mo., 356 S.W.2d 880.

The evidence supports the following statement of facts: Defendant and four of his children lived together until January 2, 1967, in a house at Bloomfield, Missouri. There were three daughters, Joyce, Doris, and Barbara, and a son, Ricky. At the time of trial in October, 1967, these children were 19, 14, 11 and 7, respectively. The house contained a living room, a kitchen and three other rooms. Defendant and Ricky slept in one bedroom and the three girls in another bedroom. The other room at the back of the house contained a bed but was not used regularly by anyone as a bedroom.

Mrs. Baker had passed away in 1963. Starting sometime subsequent to her death, defendant started taking Joyce into the back bedroom and having intercourse with her. Joyce was not more specific about the time when this started other than to say that it started sometime after her mother died and before she finished school in the spring of 1966. This did not occur when the whole family went to spend Saturday nights with relatives named Stroud but did on the Saturday nights spent at hime. Sometimes, when the family was watching TV, defendant would tell Joyce that he wanted to talk to her. On other occasions, after the three girls had gone to bed, defendant would get Joyce out of bed and take her to the back bedroom. Joyce testified positively that on these occasions her father put his privates into her privates.

Defendant asserts that the testimony of Joyce is uncorroborated and was so conflicting and improbable that it was insufficient to make a submissible case. He cites the rule, most recently repeated in State v. West, Mo., 356 S.W.2d 880, 881, as follows: 'In that connection we have stated the applicable rule to be that 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.' State v. Akers, Mo.Sup., 328 S.W.2d 31, 33.'

In the first place, the testimony of Joyce is corroborated. Her sister Doris testified that she saw her father and Joyce lying on the bed on one occasion. Joyce's clothes were partly up and partly down, and her father's clothes were partly down. She also told of instances when her father would say 'Come on' to Joyce, and she would reply 'Do I have to' and he then took her into the back bedroom. She also testified that sometimes on Saturday nights her father would come and get Joyce after the three girls had gone to bed. She further said that she would hear the bed 'screak' when her father and Joyce were in the back bedroom.

The younger daughter, Barbara, likewise testified that on almost every Saturday night she saw her father and Joyce go into the back bedroom. She also told of times when her father would come into the girls' bedroom, awaken Joyce and get her out of bed.

Defendant was arrested on January 2, 1967, as a result of a conversation on the preceding day between Joyce and a sister-in-law of defendant. Thereafter, on January 9, 1967, Joyce was examined by a doctor who found that she had a marital introitus. This indicated, he testified, that she had had intercourse many times or that she had had some large instrument inserted into her vagina.

The testimony of the two girls, plus the medical evidence, provided corroboration of Joyce.

Furthermore, we do nto agree with defendant that the testimony of Joyce is so conflicting and improbable that it is unbelievable and the state therefore failed to make a submissible case. One asserted conflict or improbability, according to defendant, was the statement by Joyce that her father had intercourse with her on Saturday nights spent at home but did not do so on the nights when they visited the Ed Stroud family. We see nothing improbable or inconsistent in that statement. The defendant would be less likely to chance discovery by other adults at the Strouds than at home when only other younger children were present. The other asserted inconsistency is that Joyce testified that sometimes when she and her father were lying on their sides on the bed, they would not be facing each other. Defendant's brief says that Joyce testified that this was the situation when the acts of intercourse occurred, but we do not so read the record. Instead, the statement referred only to times when they were on the bed lying on their sides. This is not inconsistent with her positive testimony that defendant did have intercourse with her on these occasions.

In some instances Joyce did not respond to questions asked or seemed to have difficulty in expressing herself with respect to some question. This is understandable, however, on account of a natural hesitancy to testify as to the acts complained. We also take into account the fact that Joyce had been placed in special education rather than regular classes in school.

We hold that the state's evidence was sufficient to make a submissible case.

At the close of all the evidence the defendant filed a motion to require the state to elect, as follows: 'Defendant moves the Court to require the state to elect the offense upon which it relies for a conviction and request the Court to so instruct the jury.' The motion was overruled and the court refused an instruction, tendered by defendant, which told the jury that in order to convict they 'must unanimously find that the defendant committed the particular act or incest the state has elected to rely.' Instead, the court gave Instruction No. 6 which told the jury to convict defendant if they found and believed from the evidence beyond a reasonable doubt 'that the defendant Leonard Baker, in Stoddard County, Missouri, during the year 1966, did knowingly, unlawfully and feloniously commit fornication with Joyce Lee Baker,' his daughter.

As indicated, the state offered evidence of numerous acts of incest. This court has held in several cases that such evidence is admissible. The rule was stated in State v. Akers, Mo., 328 S.W.2d 31, 33: '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...