State v. Campbell

• Decision Date: 18 February 1908
• Citation: 109 S.W. 706,210 Mo. 202
• Parties: STATE v. CAMPBELL.
• Court: Missouri Supreme Court

109 S.W. 706

210 Mo. 202

STATE v. CAMPBELL.

Supreme Court of Missouri, Division No. 2.

February 18, 1908.

Rehearing Denied March 17, 1908.

1. CRIMINAL LAW—EVIDENCE—JUDICIAL NOTICE—PROSECUTING ATTORNEY—SIGNATURE.

An indictment signed "P., Prosecuting Attorney," was not objectionable for failure to add the words "of Greene County, Missouri"; the court being warranted in taking judicial notice of its officers, and of the fact that P. was prosecuting attorney, with jurisdiction in the county where the venue was laid.

2. INDICTMENT—REQUISITES—INDORSEMENT.

An indorsement of an indictment: "This is a true bill. Marion Phillips, Foreman of Grand Jury. Filed Dec. 5th, 1905. Josiah M. Harrell, Clerk"—was not objectionable for failure to describe the court in which the indictment was found.

3. SAME—CONCLUSION—PEACE AND DIGNITY OF THE STATE.

Const. art. 6, § 38 (Ann. St. 1906, p. 241), provides that all writs and process shall run, and all prosecutions shall be conducted, in the name of "the state of Missouri," that all writs shall be attested by the clerk of the court from which they shall be issued, and all indictments shall conclude "against the peace and dignity of the state." Held, that an indictment which concluded "against the peace and dignity of state" because of the omission of the definite article "the" before "state," did not constitute substantial compliance with such constitutional provision, and was fatally defective.

4. CRIMINAL LAW — TRIAL — REQUEST TO CHARGE—INSTRUCTIONS GIVEN.

Where the court by its instructions correctly and fully covers every phase of the case to which the testimony is applicable, it is not error to refuse instructions requested by accused.

5. SAME—APPLICABILITY TO EVIDENCE.

Instructions should not be given in a criminal case on any subject on which there is no evidence.

6. SAME—APPEAL—INVITED ERROR.

The giving of an erroneous instruction was not reversible error, where accused requested a similar instruction.

7. SAME—COMMENT ON EVIDENCE—ARGUMENTATIVE INSTRUCTIONS.

An instruction that, while it is the duty of a state to establish, beyond all reasonable doubt, the guilt of defendant of the crime charged, it is not incumbent on defendant to prove his innocence, and though the testimony on defendant's behalf falls short of proving his innocence, and though the jury may disbelieve all the evidence offered by defendant, yet if the evidence leaves a reasonable doubt in their minds, they are bound to acquit, even if they believe defendant, or any, or all of the witnesses introduced in his behalf had sworn falsely, was erroneous as argumentative and as a comment on the evidence.

8. SAME—ASSUMED FACTS.

In a prosecution for rape, an instruction on alibi that, if defendant was not present at the time and place the offense was alleged to have been committed, he could not be convicted, was not erroneous as assuming that the offense was in fact committed.

9. JURY—SELECTION—POLITICAL AFFILIATION.

The court in selecting a panel of jurors is not required to select an equal number from the two political parties.

10. CRIMINAL LAW—TRIAL—OPENING STATEMENT.

An affidavit, made by prosecutrix in preliminary proceedings before a justice of the peace, should not be read by the prosecuting attorney in his opening statement to the jury, nor until it had been received in evidence.

11. RAPE—EVIDENCE—SOLICITATION—MOTIVE.

In a prosecution for rape, the state may prove improper acts and solicitations of sexual intercourse by accused toward prosecutrix prior to the rape charged, in order to show probable motive.

12. SAME—PRIOR ASSAULTS—INTENT.

The state may also prove prior assaults by the defendant on prosecutrix, in order to establish intent.

13. SAME—CONVERSATION.

In a prosecution for rape, evidence that, on a prior occasion, when prosecutrix went with defendant to haul water, he asked her why it was she was becoming lonesome, and if it was because she could not be with him, to which she replied in the negative, was inadmissible, as it was neither an improper act nor solicitation of sexual intercourse.

14. CRIMINAL LAW — EVIDENCE — CONVERSATION BETWEEN PROSECUTRIX AND DEFENDANT.

In a prosecution for rape, a conversation between prosecutrix and defendant, at the home of a justice of the peace, before whom prosecutrix made complaint, not containing any admissions by defendant nor statement tending to incriminate him, was inadmissible.

15. RAPE—EVIDENCE.

In a prosecution for rape, evidence held sufficient to sustain a conviction.

Appeal from Criminal Court, Greene County; A. W. Lincoln, Judge.

Bruce Campbell was convicted of rape, and he appeals. Reversed and remanded.

From a judgment of conviction in the criminal court of Greene county, upon a charge of rape, defendant appeals. The indictment upon which this prosecution is based is as follows:

"In the Criminal Court of Greene County, Missouri. November Term, 1905. State of Missouri, County of Greene—ss.: The grand jurors of the state of Missouri, impaneled, sworn and charged to inquire within and for the body of Greene county, upon their oath present, that Bruce Campbell late of the county and state aforesaid, on the 28th day of September, A. D., 1905, at the county of Greene, and state of Missouri, in and upon the body of one Willie Clark, unlawfully, violently and feloniously did then and there make an assault, and her the said Willie Clark, then and there unlawfully, forcibly and against her will, feloniously did ravish and carnally know, contrary to the form of the statute in such cases made and provided; and against the peace and dignity of state. Roscoe C. Patterson, Prosecuting Attorney.

"This is a true bill. Marion Phillips, Foreman of Grand Jury.

"Filed Dec. 5th, 1905. Josiah M. Harrell, Clerk."

After two continuances upon the application, and at the instance of the defendant, the cause was tried at the July term, 1906, of said Greene county criminal court. On July 23, 1906, defendant filed his motion to quash the indictment, which motion was on the same day overruled by the court, and an exception saved to such ruling. Thereupon, on the same day, defendant filed a motion to quash the regular panel of jurors. Evidence was offered by the defendant to the court, in support of the motion to quash the panel, at the close of which the motion was overruled, and an exception saved.

The evidence for the state tended to prove the following facts: The prosecuting witness, Willie Clark, was an unmarried female, and at the time of the alleged offense was between 18 and 19 years of age. She had come from Arkansas, her native state, to Greene county, Mo., but a few months before. When she was an infant her mother had died, and thereafter she had never lived with her father, and had rarely seen him, but had been reared and had always lived with a Miss Ray in the state of Arkansas, until the 15th day of March, 1905. She had been informed that her father and brother were living in Joplin, Mo., and, intending to go to them, she made preparations for the trip, Miss Ray assisting her, and on the last-named date started for this state in a wagon, with a family named Corneilson. This family, for some time before, had been living in the same house with Miss Ray and the prosecuting witness. The Corneilsons were poor and did not own a team and wagon, and the trip was made by hiring a team and wagon to take them from place to place on their journey. Miss Ray had provided the prosecuting witness with a satchel containing clothing and $15.50 in money, which money and clothing she had placed in the care of the Corneilson family. Before leaving Arkansas, the arrangement was that the prosecuting witness was to leave the Corneilson family at Chadwick, and there take the train for Joplin, Mo., her destination; but when they arrived at Chadwick, the Corneilsons refused to give her either her clothing or money, and would not permit her to leave. They continued their journey northward in a wagon until, in the latter part of March, they arrived at defendant's pasture, about five miles south of Springfield, Mo. With the defendant's consent they camped in his pasture, in a tent, for about a week (the driver who had taken them thus far having returned with his team and wagon), during which time the prosecuting witness and Mrs. Corneilson had several times visited the defendant's home for the purpose of obtaining provisions, and conversed with his wife. During these visits something was said about the prosecuting witness making her home with defendant's family, and helping them with the household work. On Sunday, after the Corneilson family had been in the defendant's pasture about a week, the defendant took them in his wagon beyond the town of Brookline, where he left the Corneilsons, but the prosecuting witness returned with him to live in his family, as previously arranged. She continued to live there until September 28, 1905, being a period of about six months. On the last-named date, prosecutrix testified that, between 8 and 9 o'clock in the morning, defendant's wife drove to Springfield to meet her sister, taking her little girl with her, leaving the prosecuting witness at the house, and that defendant started to his field, located about three-quarters of a mile from the house, about 8 o'clock, to drill wheat. Shortly after his wife left, defendant returned to the house with his team and drill, tied his team at the south gate, and went into the kitchen. "I was washing dishes, and he came in and set down by the kitchen door, and when he set down there he says to me, he asked me if I had learned to love him yet. I told him no, I hadn't, and I wouldn't. He never said any more. I finished washing the dishes and went into the bedroom to get the broom to sweep the floor, and when I went to come back in there, he grabbed me by the arm. I tried to hit him with the broom, and he grabbed the broom out of my hands and throwed it down, and I held to the...