State v. Burgess

• Citation: 168 S.W. 740,259 Mo. 383
• Decision Date: 23 June 1914
• Docket Number: No. 18188.,18188.
• Parties: STATE v. BURGESS.
• Court: Missouri Supreme Court

168 S.W. 740

259 Mo. 383

STATE v. BURGESS.

No. 18188.

Supreme Court of Missouri, Division No. 2.

June 23, 1914.

1. RAPE (§ 48)—PROSECUTION — EVIDENCE— ADMISSIBILITY.

In a prosecution for rape, a witness to whom the prosecutrix made complaint cannot give the details of her conversation with the prosecutrix.

2. WITNESSES (§ 395)—CORROBORATION.

In a prosecution for crime, where the prosecutrix was impeached by proof of conflicting statements, she cannot be corroborated by proof that she made other statements in accord with her testimony.

3. WITNESSES (§ 269)—CROSS-EXAMINATION— SCOPE.

Under Rev. St. 1909, § 5242, providing that no person on trial, nor the wife of such person, shall be required to testify, but may, at the option of the accused, testify in his behalf, and shall be liable to cross-examination as to any matter referred to in his examination in chief, the wife of an accused who took the stand in his behalf cannot be cross-examined as to reports of his immoral conduct before marriage, where she had not been interrogated on this matter in her examination in chief.

4. WITNESSES (§ 337)—IMPEACHMENT—REPUTATION.

In a criminal prosecution, where accused took the stand, his reputation cannot be attacked by proof of specific immoral acts through a witness, who had not testified to his good character, but he can be can be impeached only by proof of his general reputation.

5. WITNESSES (§ 401)—CROSS-EXAMINATION.

In a criminal prosecution, where accused's wife, who testified in his behalf, stated on cross-examination that she had not at any time left her husband, the state is concluded by her answer and cannot show that, after accused was charged with the offense, his wife left him.

6. CRIMINAL LAW (§ 1169)—APPEAL—HARMLESS ERROR.

In a prosecution for rape, where accused's wife, who testified in his behalf, stated on cross-examination that she had not left her husband after he was charged with the offense, the admission of evidence contradicting her was prejudicial error.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

George W. Burgess was convicted of rape, and he appeals. Reversed and remanded.

Convicted of rape and his punishment fixed at five years in the penitentiary, defendant appeals.

The information charges defendant with committing the crime of rape upon one Ivena Morris in Dunklin county, on June 7, 1912. The evidence of the prosecuting witness tends to prove that defendant forced her to submit to sexual intercourse with him by pushing her onto a bed, holding her hands and threatening to slap her. Prosecutrix is a 16 year old girl whose mind is, to some extent, impaired. She was making her home with defendant and his wife on a farm at the date of the alleged offense, the county paying $4 per month for keeping her. She was also working some as a house servant to help pay her way. The defendant and his wife spent the night preceding the alleged crime at the home of his mother-in-law, who was very ill. On the following morning defendant returned home a short time before his wife. Prosecutrix testified that defendant on returning home committed the crime before recited; that defendant's wife returned a few minutes later, and, upon making inquiry about the bed being disarranged, prosecutrix told her that defendant had ravished her. Mrs. Burgess, the wife of defendant, testified that when prosecutrix told her of the misconduct of her husband she became angry, and, taking the prosecutrix with her, they visited the field where defendant was plowing, and she asked prosecutrix to repeat the charge to her husband. This prosecutrix would not do. The wife thereupon told defendant of the crime with which prosecutrix had charged him. Defendant denied the charge, and accused prosecutrix of lying, and, according to the testimony of defendant and his wife, prosecutrix admitted that what she had told was false. An hour or so later the defendant returned to his house and told prosecutrix that she must leave; that he would not allow her to stay at his home any longer. The prosecutrix did leave the same forenoon. Defendant's wife on the same day returned to the home of her sick mother, where she remained two days. The prosecutrix visited the homes of three of defendant's neighbors (Mrs. Hankins, Mrs. Johnson, and Mrs. Jones) on the day of the alleged crime. To these neighbors she stated that defendant and his wife had separated, and, upon being closely interrogated by said neighbors, stated that defendant had had sexual intercourse with her. To Mrs. Johnson, one of the three, she stated the details of the alleged forcible defilement. The defendant denied having sexual intercourse with prosecutrix, and sought to discredit her evidence by statements alleged to have been made by her to others, to the effect that defendant did not have intercourse with her, and by statements elicited from prosecutrix on cross-examination, to the effect that she had not sustained sexual relations with any one before she was ravished; that the assault had not caused her any pain, and that she did not become angry with defendant until he had ordered her to leave his house.

Such other points in the evidence as are necessary to a full understanding of the issues presented will be noted in connection with the conclusions we have reached.

Defendant has assigned more than 20 alleged errors in his motion for new trial and brief. We will consider such of them as we deem worthy of special attention.

R. J. Smith, of Campbell, V. McKay, and J. P. Tribble, both of Kennett, for appellant. John T. Barker, Atty. Gen., and Wm. M. Fitch, Asst. Atty. Gen., for the State.

I. Leading Questions—Remarks of Court.

BROWN, J. (after stating the facts as above).

Defendant's first assignment is that the court erred in permitting the state to ask the prosecutrix leading questions; and with this assignment comes another, that the trial court made a remark in the presence of the jury which prejudiced their minds against defendant.

During the direct examination of prosecutrix the following matters occurred:

"Q. While you were looking for this pattern, did anybody come into the room where you were? A. Yes, sir; George. Q. Did he shut the door?

"Mr. Tribble: We object to that as leading.

"Q. Can you go on from there and fell what George Burgess said to you? A. No, sir. Q. Tell those men over there what George said to you. A. [crying] I hate to. Q. You mean you are ashamed to? A. Yes, sir. Q. Did he take hold of you in that room? A. No, sir. Q. Can you tell the jury what he asked you? A. No, sir. Q. Is it because you are ashamed to? A. Yes, sir.

"Mr. Tribble: We object to these leading questions. She has already told Mr. Bradley about it, and she can certainly and ought to tell it again.

"Mr. Bradley: She has said that she was ashamed to tell it.

"The Court: Mr. Tribble, there is a vast difference in telling such thing to just one person and getting on that witness stand before a room full of people. In some states, in trials of this kind, everybody is excluded excepting the parties interested, and this girl is entitled to as much consideration as if she had on a thousand dollar dress. Go ahead, Mr. Bradley, and do the best you can.

"Mr. Tribble: We except to the remarks of the court. We are objecting to the leading character of the question, and agree that she is entitled to as much consideration as any one else. * * * Q. Did Burgess push you over on that bed? A. Yes, sir.

"Mr. Tribble: We object to that because it is leading.

"The Court: Overruled.

"Mr. Tribble: We except.

"Q. Do you know what sexual intercourse means; you know what that means? A. No, sir. Q. Did this man do business with you there? A. Yes, sir. * * * Q. What was said to him by you about his wife? What did you say to him about his wife coming while he was on you? A. I told him he had better get up; that I seen Dolly coming, and he said, `I don't care if she is, and so when Dolly got pretty close to the house he got up. Q. Did you see Dolly coming yourself? A. Yes, sir."

In considering the admissibility of the leading questions which the court permitted the prosecuting attorney to propound, it is necessary to keep in mind the mental condition of the prosecutrix. She testified that she had attended school; that the last books she studied were a fourth reader and an arithmetic. Many of the witnesses testified that she had been a person of weak mind since she was a year old. A physician gave it as his opinion that her mental development was only about 50 per cent. normal; that she would not be likely to know that it was wrong to have sexual intercourse, and would probably not understand the nature and consequence of giving false testimony in a trial. Many of her answers indicate that she is a person of average intelligence for her age. Under this showing, and without knowing the appearance or physical demeanor of witness while testifying, we are constrained to hold that the court did not err in permitting the prosecutor to ask the leading questions hereinbefore recited. A liberal discretion is allowed to the trial court in such matters. State v. Bateman, 198 Mo. 212, 94 S. W. 843, and State v. Whalen, 148 Mo. 286, 49 S. W. 989. However, we are not able to lend our indorsement to the remark of the court by which defendant's attorney was reprimanded, without cause, for merely objecting to leading questions. In making his objections he was acting in a perfectly natural and legitimate manner. The remark complained of was calculated to lead the jury to believe that the court thought defendant to be guilty, and that his attorney was wrongfully trying to suppress the truth. It is not the proper function of a trial judge to act as prosecutor, or even assistant prosecutor —he should, as far as possible, refrain from making remarks which may lead the jury to understand upon which side of the case his sympathies fall—he should conduct himself as an impartial umpire...