State v. Bowen

• Decision Date: 04 January 1915
• Docket Number: No. 18407.,18407.
• Parties: STATE v. BOWEN.
• Court: Missouri Supreme Court

172 S.W. 367

STATE v. BOWEN.

No. 18407.

Supreme Court of Missouri, Division No. 2.

January 4, 1915.

WITNESSES (§ 382) — IMPEACHMENT BY OFFERING PARTY — CONTRADICTORY STATEMENTS.

Where a witness for the state merely omitted to testify that defendant had made a confession to him, the state could not impeach the witness by proving that he had testified to such confession before the grand jury.

Appeal from Circuit Court, Carter County; W. N. Evans, Judge.

Ed. Bowen was convicted of rape, and he appeals. Reversed, and new trial granted.

A jury convicted defendant of rape committed upon Naomi Headrick, a female child under the age of 14 years. His punishment was fixed at 5 years in the penitentiary. A former appeal in this case resulted in a reversal, on account of the erroneous admission of impeaching evidence. 247 Mo. 584, 153 S. W. 1033. It would serve no good purpose to incumber the Reports with a restatement of the facts, except in so far as they are different from those on the former appeal.

On the second trial three physicians testified that calomel is of a nature tending to produce abortion thus strengthening a weak point in the state's case on the former appeal. Calvin Lane, a witness for the state, testified as to statements made by defendant to him as follows:

"Yes, before her death, he told me that she was pregnant; that he thought she was. He came to my place to call a doctor at the time. I met him at the gate, and we talked some little bit. I asked him how the folks was, and he said Naomi was sick, pretty bad sick; that she had taken the cholera morbus a few days before that, on Friday, I think, and he told me thought there was something bad the matter with her. I asked him what, and he said he thought she was in a family way. I told him that certainly was not the case, a child like that, and he said he believed it was. I asked him who it could be, and he said he didn't know for sure, but that he would find out later. He said he thought it might be Burnam's boy, and not to say anything about it until he found out certain."

He also testified that on the day after Naomi's death defendant told him not to cry; that he (witness) would get forgiveness. He was then asked whether he remembered any other statement made by defendant about the matter, and answered: "If he said anything else, I don't remember it." This witness was recalled by defendant during the introduction of the evidence for defendant, but the evidence then elicited by the defendant from the witness did not in any material respect change or add to his testimony as given when first on the stand. Counsel for the state then examined the witness, and the following occurred:

"Q. Did you testify before that grand jury? A. Yes, sir. Q. I will read you this statement, and ask you if that is your testimony: `I know the defendant, his wife, and this child. The defendant, Bowen, came to my house on Monday and wanted me to phone for a doctor. First called Chilton; then Odell. I asked him what was the matter, and he told me that Naomi was sick, and further said there was something bad the matter, and that his wife thought so, too. I says, "That can't be, can it, and her so young?" He said that it really was, and that no one but Huston Burnam was the man. I called the doctor for him. Bowen told me not to say anything about this until after the doctor came, and see what he said. The night after the miscarriage, we talked — Bowen and I — about the matter again, and I told him, if he couldn't tell me the truth, I didn't want him to tell me anything; that to bring in an innocent party would be most as bad as the deed itself; and he made a confession to me by saying, "I am responsible for it," and didn't accuse any other party. I also heard his mother ask him about the truth of the matter concerning him, and Bowen said it was as bad as it could be. He came to me again, and asked me to pray for him, and further said he had got down on his knees and made it all well between him and his Lord, but asked others to pray for him. The girl said she didn't take any medicine to cause a miscarriage.' Is that your testimony? (Objected to by defendant as an effort to impeach their own witness, which objection was by the court overruled. To which ruling of the court defendant excepted at the time.) A. It is supposed to be; I signed it."

The foreman of the grand jury that found the indictment then testified that Calvin Lane testified as above shown before the grand jury, and Lane's evidence before the grand jury was read to the jury by the state, all done over the objection of defendant that it was an attempt to impeach the state's own witness.

L. O. Neider, of Mansfield, and J. F. Fulbright, of Doniphan, for appellant. John T. Barker, Atty. Gen., and W. T. Rutherford, Asst. Atty. Gen., for the State.

ROY, C. (after stating the facts as above).

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