State v. Carson

• Decision Date: 15 May 1951
• Docket Number: No. 28062,28062
• Citation: 239 S.W.2d 532
• Parties: STATE v. CARSON.
• Court: Missouri Court of Appeals

Page 532

239 S.W.2d 532

STATE v. CARSON.

No. 28062.

St. Louis Court of Appeals, Missouri.

May 15, 1951.

Rehearing Denied June 13, 1951.

Morris A. Shenker, St. Louis, for appellant.

Stanley Wallach, Pros. Atty., St. Louis County, Clayton, for respondent.

BENNICK, Judge.

This is a prosecution for an alleged open and notorious act of public indecency, grossly scandalous, which is made a misdemeanor by Section 563.150, R.S.Mo.1949. In common parlance the offense charged is that of indecent exposure.

Upon a trial in the Circuit Court of St. Louis County the defendant, Harold Carson, was found guilty as charged and his punishment fixed at imprisonment in the county jail for a term of one year. Following the overruling of the motion for a new trial, judgment was pronounced upon the verdict, whereupon defendant made application for and was duly allowed an appeal to this court.

Defendant was charged with having committed the offense on May 3, 1949, in the view and presence of two young women, Theresa Rosner and Marcella Richter, both of whom were eighteen years of age.

According to the state's case, the scene of the offense was on Easton Avenue near its intersection with Ogden Avenue, in Wellston. The time was about nine o'clock at night.

As the two prosecuting witnesses were walking along together on Easton Avenue, they came up to an automobile parked at the curb and observed a man standing at the rear of the car as though he were removing something from the trunk. As they passed the car the man exposed himself and addressed certain vulgar remarks to them. A half block farther on he pulled up alongside of them and repeated the offense from inside the car.

One of the young women took down the license number of the automobile, and the incident was then reported to the sheriff's office. On May 18th defendant was taken into custody on the ruse that he was suspected of a criminal offense in connection with an automobile accident which had purportedly occurred on the night of May 3rd, the night of the offense in question. While defendant was in custody both prosecuting witnesses not only identified him as the perpetrator of the offense upon them, but also identified his automobile as the one in which he had been riding on that occasion. A deputy sheriff, Phil Moeller, gave testimony that on the afternoon following his arrest defendant voluntarily made an oral confession of guilt.

Defendant was twenty-two years of age at the time of the trial, and resided with his sister, Mrs. John L. Randolph, at 9412 Kathlyn Drive in Woodson Terrace, St. Louis County. He had lived in his sister's home for a period of two years since his discharge from the army, and was known to the neighbors residing in the same block.

The defense was an alibi supported by the restimony of defendant himself along with that of his sister and several of the neighbors.

Briefly stated, the defense was that after dinner was over on the evening in question, defendant had played ball in the street with a number of the children in the neighborhood until seven o'clock or shortly after when it became too dark to continue the game. He then went inside the house and joined a party composed of his sister and Mr. and Mrs. Earl Shucart, who lived next door at 9408 Kathlyn Drive. The four of them had a few drinks of one thing or another, and sat listening to the radio until eleven o'clock, two hours after the time of the commission of the offense in question, when the gathering broke up and the Shucarts returned to their own home. The witnesses explained their ability to recall what had transpired on the particular night because of the fact that they had had their attention specifically called to it by the officers who came around only a few nights later and made inquiry as to defendant's whereabouts on the night of May 3rd.

The chief complaint on this appeal has to do with the injection into the case of the question of defendant's alleged commission of other offenses of the same character as that for which he was on trial. The challenge goes to the action of the court in allowing the state to cross-examine defendant's character witnesses concerning rumors of such other offenses; in allowing the state to cross-examine defendant himself in regard to the same; and in permitting certain witnesses for the state to testify that defendant had committed the particular offenses in their presence.

There is no doubt of the general rule that on a prosecution for a specific offense, evidence that the accused has committed other independent offenses is inadmissible in proof of his guilt of the offense for which he is being tried. There is, however, the recognized exception--that evidence of other crimes is none the less competent to prove the specific crime in issue when such evidence tends to establish motive; intent; the absence of mistake or accident; a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; or the identity of the person charged with the commission of the crime on trial. State v. Spinks, 344 Mo. 105, 125 S.W.2d 60; State v. Garrison, 342 Mo. 453, 116 S.W.2d 23.

Of course in this case there is no pretense that the evidence of other offenses was admissible under any one of the exceptions to the general rule of exclusion; nor, in fact, was it elicited in support of the state's case in chief. On the contrary, the whole question here, as defendant's complaint indicates, is whether the state was within its rights in bringing out such evidence on cross-examination of defendant's character witnesses, and in attempting to impeach defendant himself by such character of evidence after he had taken the stand in his own behalf.

Defendant put on five witnesses, all residents of the neighborhood in which he lived, who testified on their direct examination as to his good reputation. All of them were asked as to his reputation for honesty, trusthfulness, and veracity. With three of them the inquiry was extended to the question of his reputation for morality. The first of them, Frances Shucart, was also asked on direct examination whether there had been any reason to suspect defendant of any unbecoming conduct with the children in the neighborhood, to which she answered in the negative.

Having testified on direct examination to defendant's good reputation, the witnesses were then asked on cross-examination if they had heard rumors that defendant had been guilty of similar acts of indecent exposure in the presence of persons identified as Audrey Haverkost, Pauline Steinbeck, Sandra Gamache, Angelina Licavoli, Mary Emerson, and Bertha Messner. Apparently such rumors were of acts involving four separate and distinct offenses, all independent of the offense for which defendant was on trial.

It was brought out that the offense in the presence of Mary Emerson had been committed on April 10, 1949, which of course had preceded the offense on trial. It was also brought out that Mary Emerson was a child ten years of age. The offense in the presence of Audrey Haverkost, Pauline Steinbeck, and Sandra Gamache had been committed on April 21, 1949, which had also preceded the offense on trial. All of these girls were fourteen years of age. The offense in the presence of Bertha Messner had been committed on May 17, 1949, which was after the time of the offense on trial. The same was true with the offense committed against Angelina Licavoli, which was on May 18, 1949. It was brought out that Bertha Messner was eight and Angelina Licavoli fifteen years of age.

It was shown by the responses of the witnesses that rumors had indeed been afloat in the neighborhood, although not all of the witnesses had heard rumors of all of the alleged offenses. A part of their information had been gained from articles appearing in the newspapers after defendant had been taken into custody. Seemingly the rumors had had no particular adverse effect upon defendant's reputation in the neighborhood so far as the witnesses had been able to discern.

The principal objection to such cross-examination is that it descended into the particulars of the other offenses concerning which rumors were afloat, and involved the question of defendant's reputation subsequent to the offense for which he was being tried. It is also claimed that the cross-examination was error in the case of those witnesses who had not been asked on direct examination in regard to defendant's reputation for morality; and that it was in any event improper, in the conduct of the cross-examination, to mention the ages of the girls in...