State v. Burton

• Decision Date: 09 December 1946
• Docket Number: 39787
• Citation: 198 S.W.2d 19,355 Mo. 792
• Parties: State v. Albert Burton, Appellant
• Court: Missouri Supreme Court

198 S.W.2d 19

355 Mo. 792

State v. Albert Burton, Appellant

No. 39787

Supreme Court of Missouri

December 9, 1946

Appeal from Ripley Circuit Court; Hon. Randolph H. Weber Judge.

Affirmed.

W H. Meredith and Lawrence T. Tedrick for appellant.

(1) The uncorroborated, unsatisfactory and indefinite testimony of the prosecuting witness did not justify the jury's verdict of guilty, and the assessment of defendant's punishment by the court. State v. Tevis, 136 S.W 339; State v. Goodale, 109 S.W. 9; State v. Brown, 107 S.W. 1068; State v. Ball, 133 S.W.2d 414. (2) A conviction in cases of either incest or rape may be had upon the uncorroborated evidence of the prosecutrix, but when the evidence of such prosecutrix is of a contradictory nature, or when applied to the admitted facts in the case, her testimony is not convincing but leaves the mind of the court clouded with doubts, she must be corroborated, or the judgment cannot be sustained. State v. Tevis, 136 S.W. l.c. 341. (3) Instruction D-1, requested by the defendant is correct, in proper form and in view of the contradictory testimony of the prosecutrix, it was error for the court to refuse it. State v. Gilbreath, 32 S.W. 1023; State v. Hamilton, 263 S.W. 127; State v. Hickman, 8 S.W. 252; Mo. Dig. (Witnesses) Key No. 317; Mo. Dig. (Trial) Key No. 236 (2). (4) It was error for the court to give Instruction 9 after the jury had deliberated only about five hours. In effect it told the jury that they were relieved of their duty of assessing defendant's punishment thus depriving him of his constitutional right to a trial by a jury. Sec. 22, Art. II, Const. of Mo.; Amendment VI, Const. of U.S. (5) It is error to give supplemental instructions as to reaching an agreement. Nigro v. United States, 4 F.2d 781; Gideon v. United States, 52 F.2d 427; Stewart v. United States, 300 F. 769; C. & E.I. Ry. Co. v. Sellars, 5 F.2d 31. (6) The giving of said instruction was further erroneous for the reason, that it is only in instances where the jury fail to agree on the punishment, that the court is authorized to assess the punishment. Sec. 4093, R.S. 1939; State v. Fooxe, 7 Mo. 502; State v. Gilbreath, 32 S.W. 1023. (7) By giving this instruction, the court invited the jury to disregard its duty in assessing defendant's punishment. State v. Gilbreath, 32 S.W. 1023. (8) Over the objections and exceptions of the defendant, the court permitted the certain evidence to be admitted on behalf of the State, which was not material and did not tend to prove or disprove any issue in the case. 22 C.J.S., p. 922. (9) The preparation and delivery to the jury of the third form of verdict together with Instruction 9 was error on the part of the court, for the reason it amounted to a suggestion or invitation for the jury to disregard their statutory duty in assessing defendant's punishment and had a tendency to coerce the jury into arriving at the verdict last prepared by the court. State v. Hill, 4 S.W. 121; State v. Campbell, 149 S.W. 1173; Edens v. Hannibal & St. J.R. Co., 72 Mo. 212; McPeak v. Mo. Pac. Ry. Co., 30 S.W. 170; Skinner v. Stifel, 55 Mo.App. 9; McCombs v. Foster, 64 Mo. 613; Brooks v. Borth, 71 S.W. 1098. (10) The conversation between the court and various members of the jury coupled with the giving of instruction No. 9 and the third form of verdict, was highly prejudicial to the defendant and had a tendency to convince the jury that they were relieved of their duty to assess defendant's punishment. Cases cited under (9); Burton v. United States, 25 S.Ct. 243, 196 U.S. 283; Stewart v. United States, 300 F. 769; Nigro v. United States, 4 F.2d 781. (11) The severe and unusual punishment inflicted by the court, conclusively shows that he considered matters other than those disclosed by the record, otherwise the punishment would have been in line with that assessed in similar cases. State v. Mace, 278 S.W. 718; State v. Sikes, 24 S.W.2d 989; State v. Clark, 182 S.W.2d 619. (12) It was error for the court to refuse to permit the jury to deliberate longer than five hours, in attempting to assess defendant's punishment, before giving them Instruction 9 and the third form of verdict. In similar cases the jury has been kept together for periods ranging from one to four days. State v. Rose, 44 S.W. 329; State v. Shelby, 62 S.W.2d 721; State v. Shawley, 67 S.W.2d 74; State v. Herring, 92 S.W.2d 132.

J. E. Taylor, Attorney General, and Arthur M. O'Keefe, Assistant Attorney General, for respondent.

(1) General assignments in motion for new trial present nothing for review. Sec. 4125, R.S. 1939; State v. Derrington, 137 S.W.2d 468. (2) Error raised for the first time in brief cannot be considered. State v. Breeden, 180 S.W.2d 684; State v. Robinson, 177 S.W.2d 499. (3) The court properly refused Instruction D-1. State v. Caviness, 326 Mo. 992, 33 S.W.2d 940; State v. Hayes, 262 S.W. 1034; State v. Willard, 346 Mo. 773, 142 S.W.2d 1046. (4) The giving of Instruction 9 by the court was proper. Sec. 4093, R.S. 1939; State v. Hubbs, 294 Mo. 224, 242 S.W. 677; State v. Hampton, 172 S.W.2d 1; State v. Adams, 323 Mo. 729, 19 S.W.2d 671; State v. Howard, 324 Mo. 145, 23 S.W.2d 11; State v. McVey, 66 S.W.2d 857; State v. Levan, 306 Mo. 507, 267 S.W. 935; State v. Jackson, 340 Mo. 748, 102 S.W.2d 612; State v. Ward, 337 Mo. 425, 85 S.W.2d 1; State v. Bunch, 333 Mo. 20, 62 S.W.2d 439. (5) The court may go outside the record in assessing punishment. State v. Fannin, 296 S.W. 84; State v. Bunch, 333 Mo. 20, 62 S.W.2d 439. (6) Testimony as to condition of prosecutrix was proper. 52 C.J., p. 1072; State v. Stackhouse, 242 Mo. 444, 146 S.W. 1151; State v. Houx, 109 Mo. 654, 19 S.W. 35.

OPINION

Douglas, J.

Albert Burton was convicted of statutory rape and sentenced to a term of twenty-five years. Early one Saturday morning the prosecutrix, a fourteen-year old girl, accompanied her father to Poplar Bluff where he worked, from their home seven miles away. She first visited her grandmother. She was walking along Main Street eating a candy bar when Burton picked her up about 11:30 A.M. He took her to a hotel where he registered her as his wife and then took her to a room which they occupied until 4:30 P.M. the following afternoon. The girl testified Burton had intercourse with her four times. Their presence together in the hotel room was testified to by the chambermaid.

The girl's father who had notified the police of her absence and had been searching the town for her Saturday night and Sunday, found her as she and Burton were leaving the hotel on Sunday afternoon. He took her directly to the police station and the police went to the hotel and arrested Burton. Then he took his daughter to a doctor at the hospital where she was examined and found to have had sexual intercourse. When Burton was arrested he told the police he had taken the girl to the hotel but was too drunk to have anything to do with her.

The girl testified she did not leave the hotel room from the time Burton took her there shortly before noon on Saturday until the following Sunday afternoon. A druggist testified Burton and the girl were together in his drug store about five o'clock Saturday afternoon. Other witnesses testified to seeing them walking about the streets together on Sunday.

The girl's testimony about being taken to the hotel by Burton and occupying a room with him and having intercourse with him is not contradicted. In some respects it is corroborated. Only her testimony about remaining there constantly and not being able to leave during the entire time is disputed. Since force is not an element of the crime of statutory rape her story is contradicted as to a collateral matter only. Her relation of the facts necessary to prove the crime are convincing and free from doubt. She convinced the jury.

A number of cases have held that in statutory rape particularly a prima facie case can be made on the uncorroborated testimony of the prosecutrix. State v. Thomas, 351 Mo. 804, 174 S.W.2d 337. And in rape cases generally the rule is that corroboration is not essential to prove the act of sexual intercourse unless the testimony of the prosecutrix is contradictory and in conflict with physical facts, surrounding circumstances, and common experience so as to be so unconvincing and improbable that it is extremely doubtful. State v. King, 342 Mo. 975, 119 S.W.2d 277; State v. Roddy (Mo.), 171 S.W.2d 713; State v. Burton, 355 Mo. 467, 196 S.W.2d 621.

Burton complains about the refusal of his "if false in one, false in all" instruction, although the court gave an instruction on the credibility of witnesses which contained no such clause. Discussing such an instruction as the one refused, this court in State v. Caviness, 326 Mo. 992, 33 S.W.2d 940 held the trial court had discretion whether to give or refuse it and quoted with approval: "But, though it may not be error to give an instruction of this character in a particular case, it does not follow that it would be reversible error to refuse such an instruction. The trend of judicial authority in this state is to the effect that the propriety of giving an instruction of this character is a matter resting to a very great extent in the sound discretion of the trial court, and that the action of the trial court in the matter will not be disturbed unless there is a manifest abuse of such discretion to the prejudice of the appellant." And see the extended discussion in State v. Willard, 346 Mo. 773, 142 S.W.2d 1046. In the instant case we hold the trial court did not abuse its discretion in refusing the instruction.

Testimony of the girl's father and mother that when she returned her eyes were swollen, she appeared dazed and had fever was properly admitted. "Evidence of the physical and mental...