State v. Cardello
| Decision Date | 07 July 1939 |
| Docket Number | No. 36495.,36495. |
| Citation | 130 S.W.2d 498 |
| Parties | STATE v. CARDELLO. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Clay County; James S. Rooney, Judge.
Frank Cardello was convicted of rape, and he appeals.
Affirmed.
Lee Davis and Byron E. Mintonye, both of Kansas City, for appellant.
Roy McKittrick, Atty. Gen., and Max Wasserman, Asst. Atty. Gen., for the State.
WESTHUES, Commissioner.
Appellant was convicted in the circuit court of Clay county, Missouri, upon a charge of rape, and sentenced to imprisonment in the penitentiary for a term of twenty-five years. He appealed.
Only one point was briefed by appellant. He contends that the evidence was insufficient to sustain the charge. Appellant's defense at the trial was an alibi. He testified that he went to Chicago, on February 22, 1937, and remained there until sometime in March. The offense was alleged to have been committed on February 25, 1937. Appellant's sister, who was living in Kansas City, was the only other witness who testified for him. She stated that her brother went to Chicago on February 22. Three witnesses testified for the state upon this point. They positively identified appellant. They stated that he was in Kansas City on the evening of February 25, 1937, and, about an hour or so before the alleged crime was committed, was seen in the car which prosecutrix later entered. The preponderance of the evidence was against appellant and no contention was made that the evidence was insufficient upon this issue. Appellant's principal point is, that the state's evidence failed to show that the prosecutrix resisted the attack made upon her to the utmost of her strength and therefore the charge of rape was not proved. So appellant takes the position that even if he were the party who made the assault and his alibi evidence were untrue, yet he should not be convicted because of lack of proof, on the part of the state, as to the force used in making the assault. To this we cannot agree. In the following statement we will omit much of the detail of how appellant and prosecutrix met on the night of February 25. The following facts are supported by the state's evidence: The prosecutrix, Genevieve Scheier, age about twenty, graduate of a high school; her sister, Rosemary Scheier and a friend, Ruth Ann Larson, went to the E1 Torreon roller skating rink in Kansas City, Missouri. There the prosecutrix, by accident, met Tony Cullota. After some conversation Cullota asked to take prosecutrix home. She at first refused and informed him that she was with two girls and they were going home together. Later, about 10:30 p. m., Cullota induced these girls to permit him to take them home. When they started two other boys appeared upon the scene, one named Sam Cappo. The name of the other boy was not learned. From the skating rink they drove to a garage on Independence avenue, and there the driver the boy whose name was not discovered stated that something was wrong with his car and he would have to have it fixed. At this point appellant appeared upon the scene with a car. Ruth Ann Larson stated that she would take a cab...
To continue reading
Request your trial
-
State v. Tompkins
...the jury could have found from her testimony that she had resisted the attack made upon her to the utmost of strength. State v. Cardello, Mo.Sup., 130 S.W.2d 498. We hold that the court properly overruled appellant's motion for a directed Appellant contends that 'the trial court erred becau......
-
State v. Swindell
...its 'white mud flaps.' In these and the circumstances to be noted further, the evidence was sufficient to sustain the charge. State v. Cardello, Mo., 130 S.W.2d 498. While Swindell was in custody, at the county jail, on the morning of the 5th, Grover Smith, assistant chief of police, asked ......
-
State v. Ball
... ... force than the evidence in this case. Note the following: ... State v. Mitchell, Mo.Sup., 86 S.W.2d 185; State ... v. Wade, 306 Mo. 457, 268 S.W. 52; State v ... King, 342 Mo. 975, 119 S.W.2d 277; State v ... Thomas, 318 Mo. 843, 1 S.W.2d 157; State v ... Cardello, Mo.Sup., 130 S.W.2d 498. In the case of State ... v. Wade, supra, this court reviewed the ruling in State v ... Tevis, supra, and similar cases. Since the evidence of the ... state was substantial and not inconsistent with any ... [133 S.W.2d 416] ... physical facts we are not authorized ... ...
-
State v. Ball
...v. Wade, 306 Mo. 457, 268 S.W. 52; State v. King, 342 Mo. 975, 119 S.W.2d 277; State v. Thomas, 318 Mo. 843, 1 S. W.2d 157; State v. Cardello, Mo.Sup., 130 S.W.2d 498. In the case of State v. Wade, supra, this court reviewed the ruling in State v. Tevis, supra, and similar cases. Since the ......