State v. Brown

Decision Date14 February 1949
Docket Number41254
Citation217 S.W.2d 546
PartiesState of Missouri, Respondent, v. Raymond C. Brown, Appellant
CourtMissouri Supreme Court

From the Circuit Court of Greene County Criminal Appeal Judge Hiram McLaughlin

Reversed

OPINION

The defendant was convicted in the Greene County Circuit Court on a charge of burglary with intent to kidnap and to rape. The information also alleged that the defendant had previously been convicted of a felony and had served a term in the State Intermediate Reformatory. Defendant's punishment in the present case was fixed at 10 years imprisonment in the State Penitentiary. An appeal was duly taken from the sentence imposed.

Appellant's first assignment in his motion for new trial states that a new trial should have been granted "because the verdict of the jury is against the evidence and there is no substantial evidence to support the verdict of burglary with intent to kidnap and rape". The question of the sufficiency of the evidence was briefed in this court. The State contends that since the appellant filed a demurrer to the evidence at the close of the State's case and thereafter introduced evidence and did not refile the demurrer at the close of all evidence, the question is not before us for review. This precise point was decided by this court adversely to the State's contention in State v. Clark, 353 Mo. 470, 182 S.W.2d 619, l.c. 622 (5,6). We hold the point was preserved for review. We will set forth the evidence most favorable to the State, quoting from the principal witness when deemed necessary.

The prosecuting witness, Eugenia Covin, who was 21 years of age lived with her mother at 859 North Jefferson Street Springfield, Missouri. The house in which they lived belonged to Eugenia's uncle who with his wife also lived there. These four people were all at home on the night of November 20, 1947 and in the early morning hours of November 21, 1947 when the alleged offense was committed. The evidence relied upon by the State to support the charge with reference to the intent to kidnap and to rape was given by Eugenia Covin and we quote the following from her testimony:

"Q. 'Now, Eugenia, if you will, just tell the Court and Jury in your own words exactly what happened to you while you were asleep this morning of November 21 of last year.'

A. 'After I had gone to bed - the first thing that I was conscious of was being awakened by a person crouching at the foot of the bed, on the side on which I slept, bending over me, holding my hand with his hand - it was a masculine person - and with his left hand on my left shoulder, and whispering in my ear.'

Q. 'What was he saying?'

A. 'The plainest thing was, "Give me your left hand. Bring out your other hand", my left hand being under the covers, holding my mother's hand, with whom I was sleeping.'

Q. 'Did he say anything else that you could understand?'

A. 'He said a long sentence. He repeated it. The first words of which were, "Come", and, "Come with me". And the rest of the sentence I couldn't distinguish.'

Q. 'Go right ahead and tell the Court and Jury what occurred.'

A. 'My first impulse was, of course, fright, and I raised up in bed and gasped slightly. I didn't scream. And the person's right hand clamped over my mouth and he pushed me down. I was too frightened to, at that moment, to resist very strongly, being afraid, knowing that it was an intruder and being afraid of someone that might do me more vicious harm, and my first gesture was to put my hand back like that (indicating), feel the face, which was up over my right shoulder less than a foot, and feel the chin and cheek and beard. The beard was not harsh or stiff, but it was more soft than harsh, and it was about two days' growth. Then, when I put my hand up, freeing it from the intruder's right hand, his right arm came across my chest and over my left arm, then, I brought my hand down to take his right arm away and in doing so I felt a ring on his hand, his left hand.' "

* * *

"Q. 'All right, go ahead and tell them what happened then.'

A. 'Then, my mother was awakened by my restlessness, and said, "What is the matter?" And I said "Nothing". I was frightened to tell her what it was, and she said again, "What is the matter?" She tried to turn the light on, and it glowed a dull red for just a second, and went out. It didn't come completely on. Then she said, "What is the matter, Jean?" And I said, "I think there is someone in this room". Later, she said that she eased her face over and saw the silhouette, but to allay my fears and not to outrage or indignate the intruder, she said, "No, there is nobody there". And at the same time she eased the cover off of herself with her left hand and pulled me very slowly and very hard across with her right hand, still holding my left hand and said, "Well, look over here in the window and you will see his silhouette", and she said - in just a flash - "Let's get out of here", and in a flash she was up and rounded the bathroom door and pulled the bathroom light on, which hung in the center of the room with a long chain. Then, the intruder, as I said, looking at his silhouette, slowly eased back from his crouching position, still olding my hand, and she...

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