State v. Bowers
| Decision Date | 11 June 1930 |
| Docket Number | 30249 |
| Citation | 29 S.W.2d 58 |
| Parties | STATE v. BOWERS |
| Court | Missouri Supreme Court |
Philip D. Clear, of Kansas City, for appellant.
Stratton Shartel, Atty. Gen., and Ray Weightman, Asst. Atty. Gen., for the State.
Convicted of the crime of rape in the circuit court of Jackson county John Bowers was sentenced to imprisonment in the state penitentiary for a term of ten years, and was granted an appeal.
The most serious question is the sufficiency of the evidence. The state's evidence concerning the crime charged came from the lips of two little girls, Zalia Keen, the alleged victim of appellant's lust, who was 9 years old at the time, and Gladys Dunn, aged 11 years, who claimed to have been present when the alleged act was committed. These girls lived in the neighborhood where appellant lived. They testified that they had been in his room twice before the time of the act complained of. What occurred on the prior visits was not disclosed. Appellant lived in a basement room at 1119 Harrison street in Kansas City. He was a common laborer, and was a widower.
We do not deem it necessary to set out at length the revolting details of the testimony of the young girl witnesses. The story of Zalia Keen was that she and Gladys Dunn went to appellant's room after school was dismissed on an afternoon early in April, 1928, that defendant gave Gladys a book to look at and she sat down on a chair by the bed, and that appellant laid Zalia down on the bed and accomplished sexual penetration. In this Zalia was corroborated by Gladys. Appellant then gave each of the girls a dime, and they left his room.
It seems that it was discovered later that Zalia had contracted a venereal disease. Upon such discovery, and presumably on information furnished by her, appellant was arrested. Zalia admitted that she had the disease at the time of the alleged ravishment.
Appellant denied the act charged against him. He said he did not even know Zalia Keen, although he was acquainted with Gladys Dunn. He denied having a venereal disease, and said he was examined by a physician after his arrest and was found to be free from such disease and, in fact, had never had the disease in his life. He said he could not produce this physician as a witness, because he wanted $ 25 to testify and he did not have the money to procure his attendance.
Appellant testified that he was at work fixing a chimney on April 3d and did not go back to his room until two or three hours after the time fixed by the little girls as the hour of their visit to his room. On April 4th he worked at a different place fixing a door and lock and returned to his room about 6 o'clock. The man for whom he fixed the door corroborated appellant rather closely as to the time he left after completing his work on April 4th; but the attempted corroboration as to the time appellant fixed the chimney the previous day, as he claimed he had done, was unsuccessful. The owner of the building, who hired him and paid him for his work, could not fix the time within ten or fifteen days either before or after April 3d. The occupying tenant recalled that the repairs were made early in April, but he thought appellant finished the work about noon on that day. Appellant offered some evidence tending to prove that he sustained a good reputation for morality.
It seems that there had been a former trial at which the girls had testified that the assault complained of occurred on April 3d. At the last trial the girls were uncertain as to the date, but thought it occurred on April 3d or 4th. For this reason appellant endeavored to cover both days by his alibi witnesses.
As frequently occurs with witnesses of tender years, Gladys and Zalia did not testify very positively or consistently in some respects. They would say 'Yes, sir,' to almost every question asked. They testified that the assistant prosecuting attorney and the police officer told them to say things in a certain way in giving their testimony; that is, they were told the proper language to use in giving their testimony. Zalia testified on cross-examination that she had at first told the police officer that appellant had not penetrated her private parts, and that, after the officer shook his finger at her and said she knew he had, she told him appellant had done so.
In spite of the readiness of the young girl witnesses to say 'Yes' to nearly all questions asked them, even on cross-examination, their final, positive testimony was that they went to appellant's room on April 3d or 4th, and that he actually succeeded in his attempt to penetrate the private parts of Zalia Keen in the sexual act. Appellant not only denied the occurrence of any improper act on his part, but denied that the girls were in his room at all on the occasion detailed by them.
The truth of the story of the two little girls was for the jury. We think there was sufficient substantial evidence of appellant's guilt to make a case for the jury. The trial court did not see fit to disturb the verdict on the ground of the weight of the evidence. It does not appear from the record that the first conviction was set aside on that ground. Even if Zalia had a venereal disease contracted from some other person, it would constitute no defense, if appellant ravished her. From the zeal which counsel exhibited in keeping away from the jury what occurred on...
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