State v. Cason

• Court: Missouri Supreme Court
• Writing for the Court: White
• Citation: State v. Cason, 252 S.W. 688 (Mo. 1923)
• Decision Date: 09 April 1923
• Docket Number: No. 24104.,24104.
• Parties: STATE V. CASON

252 S.W. 688

STATE

V.

CASON

No. 24104.

Supreme Court of Missouri, Division No. 2.

April 9, 1923.

Appeal from Criminal Court, Jackson County; E. D. Porterfield, Judge.

Carl Cason was convicted of rape, and he appeals. Affirmed.

Jesse W. Barrett, Atty. Gen., and R. W. Otto, Asst. Atty. Gen., for the State.

WHITE, J.

This case was assigned to Reeves, C., and his statement of the facts and opinion are adopted in part as follows:

"Statement.

"Appellant was convicted of the crime of rape, as charged in the following information: `Now comes Forest F. Hanna, assistant prosecuting attorney for the state of Missouri, in and for the body of the county of Jackson, and upon his oath informs the court that Carl Cason, whose Christian name in full is unknown to said assistant prosecuting attorney, late of the county aforesaid, on or about the 9th day of July, 1921, at the county of Jackson, state of Missouri, in and upon one Juanita Lane, a female child under the age of 15 years, to wit, of the age of 14 years, unlawfully and feloniously did make an assault, and her, the said Juanita Lane, then and there unlawfully and feloniously did carnally know and abuse, against the peace and dignity of the state.'

"Upon a trial the jury returned the following verdict: `We, the jury, find the defendant, Carl Cason, guilty of rape as charged in the information, and assess his punishment at twenty-five (25) years in the state penitentiary.'

"After the usual motions for a new trial and in arrest of judgment, appellant has perfected his appeal. No assignments of error nor briefs have been filed in this court on behalf of appellant. Under the law, we must examine the record for errors, using the motions for a new trial and in arrest of judgment as a guide.

"The testimony on behalf of the state tended to show that prosecutrix was 14 years O. age on the 13th day of May, 1921, and that on or about the 1st day of July of that year appellant violated her person. At the time of the alleged assault, the prosecutrix was living at 1620 Central street, Kansas City, Mo., with her mother, who had been separated from her husband, the father of prosecutrix. In the family were two younger children. The appellant rep sided in the household, whether as the hush band of the mother of prosecutrix is not made clear by the record, and neither was it elm; whether she had been divorced from the father of prosecutrix.

"Prosecutrix testified that appellant compelled her to get in bed with him during the absence of her mother, on or about the 1st of July, 1921, and that he thereupon had intercourse with her. She was supported by facts and circumstances as given in evidence by other witnesses. Appellant denied his guilt, but testified on cross-examination:

"'Q. And you never threw Juanita on the bed, and never wrestled with her? A. Any farther than as any father living at all, who thinks anything of the children. I never seen a father in my life but what didn't try to be pals with the children. Q. You have thrown her on the bed? A. I have played with her, but not out of the way. I never had no evil thoughts.'

"Appellant sought to impeach the testimony of the prosecutrix touching the matter of the complaint, alleged to have been made by her to her mother following the attack in question. Over the objection and exception of appellant, prosecutrix was permitted to testify that the appellant had violated her person at other times prior to the assault charged in the information.

"Opinion.

"1. The information is challenged by appellant's motion in arrest of judgment. The information is sufficient, as it contains all the necessary averments for a proper charge under the statute. Section 3247, R. S. 1919; State v. Jenkins (Mo. Sup.) 225 S. W. 988; State v. Hughes, 258 Mo. 264, 167 S. W. 529; State y. George, 221 Mo. 519, 120 S. W. 35; State v. Griffin, 249 Mo. 624, 155 S. W. 432; State v. Warren, 232 Mo. 185,134 S. W. 522, Ann. Cas. 1912B, 1043.

"2. The verdict of the jury was a general verdict, finding the defendant guilty of rape, as charged in the information, and fixing his punishment. This was sufficient. State v. Bishop, 231 Mo. 411, loc. cit. 415, 133 S. W. 33 "3. Appellant's counsel demurred at the close of the state's case. He was overruled, and testimony was adduced on behalf of the defense. Complaint is made that the demurrer so offered should have been sustained. By offering testimony after his demurrer was overruled, appellant waived the consideration of such demurrer on the state's evidence alone. State v. Barker (Mo. Sup.) 242 S. W. 405; State v. Hembree (Mo. Sup.) 242 S. W. 911.

"4. However, at the close of all of the evidence the demurrer was renewed, and the question of the sufficiency of the testimony on the whole case is preserved for our review. The testimony was sufficient to make a case for the jury and sustain the verdict. The prosecutrix testified positively, directly, and unequivocally to the assault, and she was corroborated by the facts and circumstances. State v. Loness (Mo. Sup.) 238 S. W. 112; State v. Jenkins (Mo. Pup.) 225 S. W. 989; State v. Belknap (Mo. Sup.) 221 S. W. 39, 1. c. 45; State v. Hightower (Mo. Sup.) 231 S. W. 566. It was the province of the jury to weigh the testimony, and determine what credit should be given to the testimony. State v. Hubbs (Mo. Sup.) 242 S. W. 675.

"5. Appellant's complaint against the instructions of the court is wholly without merit, as the court properly and clearly instructed the jury on the gravamen of the charge and appended the usual and customary definitions of terms. In like manner he instructed on the presumption of innocence, reasonable doubt, and the credibility of the witnesses and weight of their testimony. Such instructions covered all the law arising in the case."

II

6. It is further urged as error that evidence was admitted of other assaults prior to the one charged in the information. The case of State v. Harris, 283 Mo. 99, loc. cit. 110, 111, 222 S. W. 420, where it was held by a divided court that such evidence was inadmissible, is cited in support of the contention. The majority opinion in the Harris Case is not only contrary to the uniform previous rulings of this court, but contrary to the universal rulings of all other courts of this country. In prosecutions for statutory rape, where the female is under the age of consent, evidence of prior criminal acts between the same parties is admissible as tending to prove the crime charged. This is an exception to the general rule that other crimes than the one for which the prisoner is on trial may not be shown. An examination of the cases which announce the general rule will show that they all involve crimes other than rape, etc. For instance: In State v. Spray, 174 Mo. 569, 74 S. W. 846, the evidence held inadmisible was that of another robbery; in the Boatright Case, 182 Mo. loc. cit. 51, 81 S. W. 450, subsequent larcenies; in the Hyde Case, 234 Mo. loc. cit. 224, 136 S. W. 316,, Ann. Cas. 19121), 191. other murders; in the Teeter Case, 239 Mo. 475, 44 S. W. 445, seduction of a woman other than the prosecuting witness; in the Wellman Case, 253 Mo. 302, 161 S. W. 795, adultery with a woman other than the woman named in the information; in the Bersch Case, 276 Mo. 414, 207 S. W. 809, evidence of a different arson.

There is no authority for the ruling in the Harris Case. The doctrine in this state prior to that case appears in the following cases: State v. Scott, 172 Mo. 536, loc. cit. 543, 72 South. 897; State v. Palmberg, 199 Mo. 233, loc. cit. 241, 97 S. W. 566, 116 Am. St. Rep. 476; State v. Pruitt, 202 Mo. loc. cit. 53, 100 S. W. 431, 10 Ann. Cas. 654; State v. Patrick, 107 Mo. 147, loc. cit. 155, 17 S. W. 666; State v. Campbell, 210 Mo. loc. cit. 233, 109 S. W. 706, 14 Ann. Cas. 403; State v. McKinney, en banc, 254 Mo. loc. cit. 698, 163 S. W. 822. The reason why such evidence was held admissible is stated by this court in the case of State v. Pruitt, 202 Mo. loc. cit. 53, 100 S. W. loc. cit. 432, 10 Ann. Cas. 654, as follows:

"Such evidence is of such a character as tends to make it probable that the parties did commit the specific offense charged; they constitute the foundation of an antecedent probability."

The McKinney Case was en banc and controls. The following cases from some other states illustrate the rule: People v. Cassidy, 283 Ill. 398, loc. cit. 406,119 N. E. 279; People v. Coston, 187 Mich. 538, loc. cit. 545, 153 N. W. 831; State v. Schueller, 120 Minn. 26, loc. cit. 29, 138 N. W. 937; Sykes v. State, 112 Tenn. 572, loc. cit. 576, 82 S. W. 185, 105 Am. St. Rep. 972; State v. Richey, 88 S. C. 239, loc. cit. 242, 70 S. E. 729; People v. Mathews, 139 Cal. 527, loc. cit. 530, 73 Pac. 416; State v. Brown, 85 Kan. 418, loc. cit. 420, 116 Pae. 508; People v. Thompson, 212 N. Y. 249, loc. cit. 251, 106 N. E. 78, L. R. A. 1915D, 236, Ann. Cas. 1915D, 162; Barker v. State, 188, Ind. 263, 120 N. E. 593, loc. cit. 595; State v. Crouch, 130 Iowa, 478, loc. cit. 484, 107 N. W. 173; Haggart v. State, 77 Tex. Cr. R. 270; 178 S. W. loc. cit. 329; Miller v. State, 79 Tex. Cr. R. 9, 185 S. W. 29, loc. cit. 34; Anderson v. State, 87 Tex. Cr. R. 230, 220 S. W.. lac. Cit. 776; Morris v. State, 9 Okl. Cr. R.. 241, 131 Pac. 731, loc. cit. 733; Vinson v. State, 140 Tenn. loc. cit. 71, 203 S. W. 338; State v. Neel, 23 Utah, 541, loc. cit. 543, 65 Pac. 494; Grabowski v. State, 126 Wis. 447, loc. cit. 454, 105 N. W. 805; State v. Hardin, 63 Or. 305, loc. cit. 308, 127 Pac. 789; People v. Nichols, 159 Mich. 355, loc. cit. 358, 124 N. W. 225; State v. Cannon, 72 N. J. Law, loc. cit. 47, 60 Atl. 177; People v. Castro, 133 Cal. loc. cit. 12, 65 Pac. 13; State v. Conlin, 45 Wash. 478, loc. cit. 481, 88 Pac. 932; Mitchell v. People, 24 Colo. 532, loc. cit. 535, 52 Pac. 671; State v. Peres, 27 Mont. loc. cit. 360, 71 Pac. 162.

The cases above cited cover many of the states, and many of them cite numerous other cases....