State v. Brannan

• Citation: 105 S.W. 602,206 Mo. 636
• Parties: STATE v. BRANNAN.
• Decision Date: 19 November 1907
• Court: Missouri Supreme Court

105 S.W. 602

206 Mo. 636

STATE v. BRANNAN.

Supreme Court of Missouri, Division No. 2.

November 19, 1907.

1. CRIMINAL LAW — APPEAL — NEW TRIAL — MOTION — NECESSITY.

All errors during the progress of a criminal trial and all matters of exception must be brought to the attention of the court in a motion for a new trial, or they will be deemed waived.

2. SAME — MOTION IN ARREST.

The general rule is that a motion in arrest, in a criminal case, can only be maintained for a defect apparent on the face of the record.

3. SAME.

The denial of a motion to quash an indictment, made on the ground that it was not certified by the foreman of the grand jury as a "true bill," is a matter of exception, which must be raised by motion for a new trial, and not by motion in arrest; the certificate not being a part of the record proper.

4. SAME — DEMONSTRATIVE EVIDENCE — PRELIMINARY EVIDENCE — SUFFICIENCY.

Where, on a trial for rape on a child, her mother testified that she examined the child's clothing the morning after the offense and found the same torn, and stated that they were the clothes introduced in evidence, and were in the same condition then as they were the morning after the offense, except that they had been washed, the clothes were properly admitted in evidence as against the objection that they were not identified as the clothes worn by the child at the time.

5. SAME.

Articles of clothing worn by the prosecuting witness at the time of the commission of a rape on her are admissible in evidence, though they have since been washed.

Appeal from Circuit Court, Osage County; R. S. Ryors, Judge.

William Brannan was convicted of rape, and appeals. Affirmed.

Gove & Davidson, for appellant. The Attorney General and N. T. Gentry, for respondent.

BURGESS, J.

The defendant, at the October adjourned term of the circuit court of Osage county, was convicted of rape, and his punishment fixed at 10 years in the penitentiary, under an indictment charging him with feloniously assaulting and having carnal knowledge of a female child under the age of 14 years. Defendant's motions for new trial and in arrest of judgment having been overruled, he appealed.

The date of the alleged offense was August 11, 1906, and the name of the prosecutrix was Minnie Sharp, a child of about 10 years, who lived with her parents near Freeburg, Osage county, about a quarter of a mile from the home of defendant. On the date above mentioned, the mother of defendant asked the little girl to accompany her to her home, and stay with her all night, which she did. Both retired that night, occupying the same bed, the child sleeping with her clothes on. Late that night, the defendant came home, went into the room, took the girl out of the bed, and carried her out to the back yard, where he had sexual intercourse with her. While the defendant was taking her out in the yard, she told defendant that she would tell her father, and defendant said: "If you do, I will kill you." After defendant had accomplished his purpose, the child ran back to the bedroom of Mrs. Brannan, the defendant following her. Mrs. Brannan awoke, and said: "William, get away from here. Why don't you sleep in the kitchen?" The little girl remained in bed with Mrs. Brannan the remainder of the night, and went home early next morning, and made complaint to her mother. The mother examined the child, and found her drawers torn and bloody, and her parts badly inflamed. A week later Dr. Buechler made an examination of the child, and found her parts inflamed and the hymen ruptured. Defendant's mother testified that the child slept with her on the night in question, but she denied all knowledge of the alleged assault, and stated that she was awake several times during the night. The defendant denied having had anything to do with the little girl. He admitted that he came home late and was drinking some that night, and further admitted that he had been convicted of abducting a female under the age of 18 and had served a term in the penitentiary. While the record discloses that the defendant, before the introduction of any evidence, filed a motion to quash the indictment upon the ground that it was not certified to by the foreman of the grand jury as a "true bill," that the court overruled said motion, and defendant excepted, it does not appear that any point was made upon this defect in the indictment in the motion for a new trial, although the court's attention was called thereto in the motion in arrest. The Attorney General contends that, as the point was not made in the motion for new trial, it is waived. It is well settled that all errors occurring during the progress of the trial and all matters of exception must be brought to the attention of the court in a motion for new trial; otherwise, they will be considered as waived. State v. Ray, 53 Mo. 345; Carver v. Thornhill, 53 Mo. 285, and subsequent cases. In State v. Mertens, 14 Mo. 94, it was held that the statute requiring the foreman of a grand jury to certify, under his hand, that the indictment is a true bill, was...