State v. Berezuk

• Decision Date: 14 December 1932
• Citation: 55 S.W.2d 949,331 Mo. 626
• Parties: The State v. Annie Berezuk, DeWitt Gathing and Virdell Robinson, Appellants
• Court: Missouri Supreme Court

55 S.W.2d 949

331 Mo. 626

The State v. Annie Berezuk, DeWitt Gathing and Virdell Robinson, Appellants

Supreme Court of Missouri

December 14, 1932

Appeal from Circuit Court of City of St. Louis; Hon. Wilson A Taylor, Judge.

Reversed and remanded.

Sidney R. Redmond and Henry D. Espy for appellants.

(1) The verdict is contrary to the evidence, and the weight of the evidence, and is a result of racial prejudice. The court should have sustained the demurrer to the evidence. State v. Donnington, 246 Mo. 343, 151 S.W. 975; State v Remley, 237 S.W. 489; State v. Cowing, 99 Minn 126, 108 N.W. 851, 9 Ann. Cases 566; 22 R. C. L. 1182, sec. 12; 22 R. C. L. 1222, secs. 56, 57. (2) The court erred in refusing to give the instruction requested by defendants which was as follows: "You are instructed that the mere having of sexual intercourse by a man with a woman does not constitute the crime of rape. In order to constitute rape the accused must not only have sexual intercourse with the female, but such act must be accomplished forcibly and violently and against the will of the female; that is, without her consent and against her utmost resistance." The court further erred in failing to give an alibi instruction covering the defense of DeWitt Gathing. Sec. 3681, R. S. 1929; State v. Whiller, 36 S.W.2d 937; State v. Fine, 23 S.W.2d 7; State v. Kelgore, 70 Mo. 546; State v. Reed, 154 Mo. 129, 55 S.W. 74. (3) The court erred in defining in Instruction 1 the terms "ravish" and "carnally know," thusly: "By the terms 'ravish' and 'carnally know' is meant sexual intercourse; that is, the actual penetration of the female private parts or organ by the male private parts or organ in the act of sexual intercourse." Bouvier's Law Dictionary; State v. Marshal, 297 S.W. 68; Page v. Payne, 293 Mo. 623, 240 S.W. 156; State v. Griffith, 279 S.W. 140; State v. Cottengin, 12 S.W.2d 52; State v. Harris, 232 Mo. 317, 134 S.W. 535. (4) The court erred in permitting the circuit attorney over defendant's objection, to question defendants as to sexual intercourse between Annie Berezuk and DeWitt Gathing, and in permitting the circuit attorney to ask questions concerning what happened after December 16, 1930, and further erred in permitting the circuit attorney to question defendants on matters on cross-examination which they had not testified to on direct examination. Sec. 3692, R. S. 1929; State v. Mitchell, 129 S.W. 920; State v. McGraw, 74 Mo. 574; State v. Porter, 75 Mo. 177; State v. James, 216 Mo. 394, 115 S.W. 994. (5) The court erred in permitting Helen Zulinski, one of the State's witnesses, to testify, over the objection of appellants, concerning a purported telephone conversation made by Virdell Robinson to her for the reason that there was no testimony that she could identify said message as coming from said Robinson. Meyer Milling Co. v. Strokfeld, 20 S.W.2d 963; State ex rel. v. Cox, 30 S.W.2d 464; Lewis v. United States, 11 F.2d 745; 71 A. L. R. 5; Commonwealth v. Harris, 232 Mars. 591, 122 N.W. 749; People v. McKane, 143 N.Y. 455, 38 N.E. 950; Stepp v. State, 13 Tex. Crim. 349, 20 S.W. 753; 1 R. C. L. 477, sec. 13; Spivey v. State, 114 Ark. 267, 169 S.W. 949, Ann. Cas. 1916E, 977; 2 Jones on Evidence, 211.

Stratton Shartel, Attorney-General, for respondent; Otis Patterson of counsel.

The first assignment of error is that the verdict and judgment are against the evidence, against the weight of the evidence, and against the law under the evidence. The determination of that question is for the trial court only unless the record shows that its discretion was abused, which may only be considered when the motion for new trial expressly sets forth that ground. Sec. 3735, R. S. 1929; State v. Miller, 300 S.W. 765; State v. Bowman, 12 S.W.2d 52. The verdict of conviction, if supported by substantial evidence, will not be disturbed. State v. Henke, 285 S.W. 392; State v. Trosper, 293 S.W. 486. The Supreme Court cannot weigh the evidence. State v. Sharp, 300 S.W. 501; State v. Frederick, 300 S.W. 678; State v. Goodwin, 300 S.W. 723. The weight of the evidence is for the jury where directly contradictory and the Supreme Court is concluded by verdict of conviction. State v. Alexander, 278 S.W. 709. The court will not usurp the province of the jury where the story of the prosecutrix, though improbable in many respects, if believed, makes a case for the jury. State v. Schenk, 238 Mo. 429. The second assignment of error is that the court erred in overruling defendants' demurrer to the evidence at the close of the State's case. The record shows that the defendants proceeded to offer their evidence after the overruling of their demurrer and thereby they waived their right to raise this question for review. State v. Winkler, 273 S.W. 1043; State v. Crunkleton, 278 S.W. 982; State v. Hanger, 278 S.W. 986. Refusal of an instruction on the converse of main instruction is not error when the converse was already sufficiently given. State v. Sloan, 274 S.W. 734; State v. Dougherty, 228 S.W. 786. The main instruction as given included the converse instruction that "Unless you so find you will acquit them." The court should not be required to repeat instructions upon the same subject. State v. Maher, 276 S.W. 1034.

Cooley, C. Westhues and Fitzsimmons, CC., concur.

OPINION

COOLEY

By information in the Circuit Court of the City of St. Louis, the defendants were charged with the crime of rape alleged to have been committed by force upon one Genevieve Arciszewski on December 16, 1930. They were tried jointly and all were convicted, the jury by separate verdicts fixing the punishment of defendants Berezuk and Robinson at thirty years' imprisonment in the penitentiary and of Gathing at fifteen years. In due course defendants were sentenced in accordance with the verdicts and all have appealed.

The prosecutrix, Genevieve Arciszewski, was between sixteen and seventeen years of age at the time of the alleged offense. Her mother had died three or four years prior to that time. For a short time after her mother's death she had lived with a married sister, Helen Zelinski, then for a time in the home of defendant Annie, or Anne, Berezuk, a married woman, who is prosecutrix' aunt. A year or so perhaps longer, before December 16, 1930, Mrs. Zelinski had taken prosecutrix from the Berezuk home to her own where prosecutrix thereafter resided until after the events herein involved. At the time of the trial she was in a correctional institution in St. Louis but it is not shown when or why she was sent there. Prosecutrix and defendant Annie Berezuk are white women. Defendants Gathing and Robinson are negroes. Though it is not clearly shown we infer from the record that Robinson is a young man and that both he and Gathing were single at the time in question. The State's contention is, and its evidence tended to show, that defendant Robinson had carnal knowledge of prosecutrix forcibly and against her will and that defendants Annie Berezuk and Gathing were present actively aiding and abetting Robinson in the commission of the crime.

The State's evidence tended to show that prosecutrix had met and become acquainted with Robinson and Gathing a year or so before the alleged offense, the three having worked at the same place; that on December 16, 1930, prosecutrix was working for the Holeman Paper Box Company and while on her way home from work shortly after five P. M., that evening she met her aunt, Mrs. Berezuk, who asked her to go home with her; that she declined to do so; that thereupon Mrs. Berezuk "gave a signal and Robinson drove up" in an automobile; that Mrs. Berezuk and Robinson "told me to get into the car and I wouldn't do it, and so Robinson told me if I wouldn't go I would have to go and he pushed me in and took me to Anne Berezuk's house," Mrs. Berezuk going along in the car; that on arrival at Mrs. Berezuk's abode, which was on the second floor of a house at 1421 O'Fallon Street, "they" took her upstairs where until about eight o'clock she sat on the bed and cried, telling them she wanted to go home; that they refused to let her go home; that Gathing was there when she and her captors arrived; that about eight o'clock her aunt took off prosecutrix' hat and coat "and they were fooling around and talking and about ten o'clock she told me to get ready to go to bed;" that she (prosecutrix) said she did not want to and "she (Mrs. Berezuk) pulled off my clothes then, and Anne Berezuk and Gathing got into bed, and they pushed me in bed, Anne Berezuk and Robinson;" that Robinson helped to disrobe her; there was but one bed in the room and all four were in that bed; that "Anne Berezuk held my shoulders down and Gathing held my mouth, to keep me from hollering," while Robinson forcibly had sexual intercourse with her; that she tried to "holler" but could not and resisted to the extent of her ability.

Prosecutrix' testimony further tends to show that December 16th was Tuesday and that she remained at her aunt's residence not being permitted to leave, until the next Saturday evening, and that each night Robinson "forced" her to have intercourse with him; that on Saturday evening her sister, Mrs. Zelinski, came with the police "and when my aunt knew it was my sister she told Gathing and Robinson and they took me downstairs and held me in the lavatory until my sister left with the police." She testified that after Mrs. Zelinski and the police left Mrs. Berezuk said she had a friend in East St. Louis and took prosecutrix there by street car where the two remained that night and the next day, returning to Mrs. Berezuk's residence Sunday evening where she spent that night and part of Monday; that on Monday she "got away" while her aunt was downstairs in the lavatory and the men...