State v. Barnes

• Citation: 29 S.W.2d 156,325 Mo. 545
• Decision Date: 11 June 1930
• Docket Number: 30212
• Parties: The State v. Roy Barnes, Appellant
• Court: United States State Supreme Court of Missouri

29 S.W.2d 156

325 Mo. 545

The State v. Roy Barnes, Appellant

No. 30212

Supreme Court of Missouri

June 11, 1930

Appeal from Pettis Circuit Court; Hon. Dimmitt Hoffman Judge.

Affirmed.

Shain O'Bannon & Shain for appellant.

(1) There was prejudicial error to the defendant in permitting the prosecuting attorney and the hired counsel for the State to use improper methods in the cross-examination of defendant's witnesses: in that there was allowed too great latitude as to incompetent and immaterial matter; in that the State's counsel was permitted frequently to misquote the witnesses' former testimony in the framing of questions; in that there was unnecessary harrassing of the witnesses; in that the character of the questions and the expressions of the counsel in the formation of questions were unjust insinuations against the character of the witness, and in that the State's counsel, in asking questions, so framed the same as to impute crime to a witness without showing or attempting to show that the witness had ever been guilty of offense. "Latitude in cross-examination cannot extend to incompetent, irrelevant, and immaterial matters." State v. Mull, 300 S.W. 511; Shull v. Kallauner, 300 S.W. 554; Capps v Winchester, 286 S.W. 729. (2) Prejudicial error was committed by the court in improperly rebuking the young lady witness who, when asked to describe a certain man, answered: "Well, sir, he is a little low guy." Whereupon, the court, to the great prejudice of the defendant, discredited this witness in the eyes of the jury and also threw discredit upon her associates who were witnesses in the case by characterizing her use of language as "common and indecent language." It will be noted in the record that the prosecuting attorney frequently referred to this young lady's young men company and the young men company of other witnesses as "fellows." The record will show that the word "fellow" was used in its meanest sense, as: "A man without good breeding or worth; an ignoble or mean man." While the court, upon its own motion, chastises the young lady for the use of the term "guy," it does not criticise or call attention to the fact that the prosecuting attorney is using the much more opprobrious epithet "fellow." (3) The court committed error in permitting the hired counsel for prosecution at the close of defendant's testimony to take the front and replace State's witnesses upon the stand and again review the testimony offered in chief, and in permitting inquiry into matters gone into in chief, and in permitting new witnesses to be brought on the stand and being inquired of and testifying to matters that were not in rebuttal. The conduct of the court in this respect was an abuse of sound discretion. (4) The verdict is against the weight and the sufficiency of the evidence. The text-writers and the courts have given full recognition to the soundness of the doctrine as set forth by Matthew Hale, to-wit: "It must be remembered, that it is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, though ever so innocent; and that we should be the more cautious upon trials of offenses of this nature, wherein the court and jury may with so much ease be imposed upon without great care and vigilance." The greatest prejudice to the defendant consists in the accumulation of prejudicial matter that is so easily injected into a case of this kind. Concerning this class of error our courts say: "While it is the law that a conviction for rape may be sustained upon the uncorroborated evidence of the outraged female, it is nevertheless equally well settled that the appellate court will closely scrutinize the testimony upon which the conviction was obtained, and if it appears incredible and too unsubstantial will reverse the judgment. State v. Patrick, 107 Mo. 147; State v. Goodale, 210 Mo. 275.

Stratton Shartel, Attorney-General, and Henry Depping, Assistant Attorney-General, for respondent.

(1) The evidence is sufficient to make a case for the jury. State v. Hurlbut, 285 S.W. 469; State v. Dilts, 191 Mo. 675; State v. Marcks, 140 Mo. 656; State v. Sechrist, 226 Mo. 574. (a) There is no rule of law which forbids a jury to convict one charged with this crime on the uncorroborated testimony of the prosecutrix if the jury are satisfied beyond a reasonable doubt of the truth of her testimony. State v. Dilts, 191 Mo. 675. (b) To authorize this court to set aside a verdict as not supported by the facts, there must be a total failure of evidence, or it must be so lacking in probative force as to indicate that the verdict was the result of passion and prejudice. State v. Cooley, 289 S.W. 809; State v. Primm, 98 Mo. 373. (c) This court will not pass upon the weight of the evidence before the jury, except in so far as to determine whether the verdict is supported by substantial evidence. State v. Hamilton, 304 Mo. 24. (2) The range and character of cross-examination of a witness is largely within the discretion of the trial judge. State v. Wagner, 311 Mo. 411; State v. Riley, 274 S.W. 54. (3) The admission of testimony in criminal cases out of its regular order and in rebuttal is within the sound discretion of the court. State v. Keller, 281 S.W. 963.

OPINION

Blair, P. J.

Defendant was convicted of rape. His punishment was fixed at imprisonment in the state penitentiary for a term of three years. He has appealed from the judgment entered on the verdict.

The prosecutrix lived with her parents in Sedalia. Her testimony was that, on the evening of May 28, 1928, she was induced by defendant to enter his automobile for the purpose of taking a ride. They drove east of Sedalia on the Smithton road. Defendant drove his automobile off the main highway and parked it along the roadside. He there forced prosecutrix to submit to him and had sexual intercourse with her in the automobile. She was at that time under sixteen years of age, the statutory age of consent. It may well be doubted from the testimony of prosecutrix that she offered any serious resistance to defendant, because she testified that she afterwards entered defendant's automobile upon several occasions and drove with him to out-of-the-way places near Sedalia where they indulged in the same act. The relation continued for three or four months.

In October, and after prosecutrix discovered that she was pregnant, she told her mother for the first time of her relations with defendant. A child was born to prosecutrix in February, 1929. Prosecutrix testified that she had never had sexual relations with any man other than defendant.

No one who testified, except the sister of prosecutrix, testifying in rebuttal, had ever seen prosecutrix with defendant. The sister said that she had been in the automobile with prosecutrix and the defendant on several occasions and had seen them together a number of times. Prosecutrix said she would leave home, ostensibly to go to church, and would there meet defendant and go away with him in his automobile. She said she had never gone with any other boys, and she and her parents testified that she had been forbidden to do so. Her meetings with defendant appear from her testimony to have been practically clandestine.

Defendant stoutly denied having taken prosecutrix into his automobile at any time or that he had ever been out with her or alone with her. He knew her by sight, because they lived in the same general neighborhood, but he did not even have a speaking acquaintance with her. He denied having had sexual intercourse with her.

Prosecutrix fixed the time of the first act as the evening of May 28th. Defendant testified that he was in attendance upon meetings at a different church or tabernacle in Sedalia on the nights prosecutrix testified he was with her. In this he was corroborated by two young women, one of them apparently the fiancee of defendant, who testified that they were with him at such meetings. Defendant offered evidence tending to show that he sustained a good reputation for honesty and morality. The State offered no evidence to the contrary. Defendant also offered evidence tending to show that prosecutrix sustained a bad reputation for morality.

Defendant introduced evidence tending to show that prosecutrix had been seen leaving church, riding in automobiles and at other places with young men other than defendant. These witnesses had never seen prosecutrix with defendant. He also produced witnesses who testified that they had seen prosecutrix at a dance in the country near Sedalia; that she was drinking at the time; that she took young men outside and was out with them for some time. The inference sought to be created, no doubt, was that she was then engaged in immoral conduct with them.

How testimony of specific acts of alleged misconduct on the part of prosecutrix was admissible, is not clear; but the State seems to have let it come in without objection. However, the State called in rebuttal the men who gave the particular dance and they denied that prosecutrix was the young woman described by defendant's witnesses. Prosecutrix herself stoutly denied her presence at that dance. Defendant also sought to show a specific act of church disturbance by prosecutrix. But the minister in attendance testified that the prosecutrix was not the girl who created the disturbance. She also denied any such act on her part. In fact, the charge of her attendance on this dance and drinking and misbehaving herself thereat and the charge of church disturbance were quite thoroughly refuted by the State. If the jury thought these witnesses had testified falsely and that defendant had procured their perjured testimony, they may have weighed the other evidence offered by defendant in the same scales.

Defendant contends...