State v. Ball

• Decision Date: 22 November 1939
• Docket Number: No. 36502.,36502.
• Citation: 133 S.W.2d 414
• Parties: STATE v. BALL.
• Court: Missouri Supreme Court

133 S.W.2d 414

STATE v. BALL.

No. 36502.

Supreme Court of Missouri, Division No. 2.

November 22, 1939.

Appeal from Circuit Court, Howell County; Will H. D. Green, Judge.

Dan Ball was convicted of statutory rape and he appeals.

Affirmed.

Ben Searcy and L. N. Searcy, both of Eminence, and Homer Rinehart and J. N. Burroughs, both of West Plains, for appellant.

Roy McKittrick, Atty. Gen., and Lawrence A. Bradley, Asst. Atty. Gen., for respondent.

WESTHUES, Commissioner.

Appellant was convicted on a charge of statutory rape and sentenced to imprisonment in the penitentiary for a term of fifteen years, from which sentence he appealed. Appellant has briefed five points upon which he seeks a reversal of the judgment.

It is insisted that the evidence of the prosecutrix, a female child fourteen years of age, was not corroborated, and therefore was insufficient to sustain a conviction. Appellant relies upon a number of cases, among them State v. Tevis, 234 Mo. 276, 136 S.W. 339, 341, where this court said:

"A conviction in cases of either incest or rape may be had upon the uncorroborated evidence of the prosecutrix, but when the evidence of such 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."

A reading of that case discloses that the evidence of the prosecutrix was highly improbable and the circumstances surrounding the case rendered the truth of the prosecutrix' evidence extremely doubtful. In the case under consideration the prosecuting witness' evidence was not in conflict with any physical facts, nor do we find any circumstances disclosed by either the state's evidence or that of the defendant that would justify a court in ruling that the evidence of prosecutrix was unbelievable. The prosecuting witness, her father, mother, and other members of the family lived in Arkansas just below the Missouri line, upon a farm owned by appellant. Prosecutrix testified that in May, 1937, she and her brother, age nine, went to water some hogs which were near a vacant house known as the "old south place", in Howell county, Missouri, about a quarter of a mile north of the Arkansas line. While they were performing this task appellant appeared upon the scene, and after a short interval picked up the prosecutrix and carried her upstairs in the vacant house where he had sexual intercourse with her. Prosecutrix testified that in about ten minutes or so her brother came up the steps, whereupon appellant left. She further testified that appellant warned her not to tell anyone, which admonition she heeded until about a year later when she informed her parents of what had occurred. It is not necessary to detail the evidence here except to state that if the evidence of prosecutrix be true then appellant was guilty of statutory rape. Many cases are to be found where a conviction of such an offense has been sustained by this court upon evidence of no more probative force than the evidence in this case. Note the following: State v. Mitchell, Mo.Sup., 86 S.W.2d 185; State v. Wade, 306 Mo. 457, 268 S.W. 52; State v. King, 342 Mo. 975, 119 S.W.2d 277; State v. Thomas, 318 Mo. 843, 1 S. W.2d 157; State v. Cardello, Mo.Sup., 130 S.W.2d 498. In the case of State v. Wade, supra, this court reviewed the ruling in State v. Tevis, supra, and similar cases. Since the evidence of the state was substantial and not inconsistent with any physical facts we are not authorized to disturb the verdict.

Appellant also urges that the trial court erred in failing to give an instruction on felonious assault with intent to rape. A similar contention was made in State v. King, 342 Mo. 975, 119 S.W.2d 277 loc. cit. 284(13), where this court held that such an instruction should not be given in cases where the proof shows the crime to have been consummated. The ruling in that case controls the situation in the case before us.

The trial court gave an instruction on the credibility of the witness, omitting the "falsus in uno, falsus in omnibus" clause. This omission was assigned as error. Appellant is in no position to complain, because the instruction as given was correct and appellant did not offer an instruction of his own. State v. McPhearson, Mo.Sup., 92 S.W.2d 129, loc. cit. 131(4); State v....