State v. Childers

• Decision Date: 14 June 1954
• Docket Number: No. 1,No. 43885,43885,1
• Citation: 268 S.W.2d 858
• Parties: STATE v. CHILDERS
• Court: Missouri Supreme Court

Page 858

268 S.W.2d 858

STATE v. CHILDERS.

No. 43885.

Supreme Court of Missouri, Division No. 1.

June 14, 1954.

Roy Coyne, Joplin, James Tatum, Pineville, for appellant.

John M. Dalton, Atty. Gen., Grover C. Huston, Asst. Atty. Gen., for respondent.

CONKLING, Judge.

Robert Childers, defendant below, has appealed from a judgment of conviction entered after a jury trial wherein he was sentenced to thirty days in jail and fined $300 and costs upon a charge of molesting a female minor, contrary to Section 563.160 RSMo 1949, V.A.M.S.

In this Court defendant now contends that (1) there was no substantial evidence to support the verdict, (2) that one of the jurors was disqualified under the statute, (3) that there were no women on the jury, (4) that the assistant prosecuting attorney was permitted to ask an improper question and made an improper argument to the jury, and (5) that the court erred in giving instruction 1 to the jury.

From the evidence introduced upon the trial the jury could have found: that the prosecutrix, who was ten years of age at the time of the acts in evidence, lived with her parents two miles east of Southwest City, Missouri, and a half mile from where defendant lived; that one morning in November, 1950, defendant drove to the home of prosecutrix and secured permission from prosecutrix' mother for prosecutrix to drive with defendant into Southwest City; that prosecutrix' mother then requested defendant to also purchase a loaf of bread for her in Southwest City; that when prosecutrix and defendant reached Southwest City in defendant's car, defendant parked his car in front of the Nichols Store; that defendant asked prosecutrix if she wanted a candy bar, and upon receiving her affirmative reply defendant purchased a candy bar for her, bought the loaf of bread and then mailed a letter; that defendant then bought prosecutrix an ice cream cone;

That defendant then drove the car (and prosecutrix) through Southwest City and down a lane to the lower end of the city cemetery; that defendant there parked his car near a stone statue; that there were no houses nearby; that defendant then took a blanket from the trunk of his car, went across a fence and spread it on the ground; that defendant was down 'on his knees (on the blanket) and asked me to come over there, he wanted to show me something'; that prosecutrix got out of the car and went over and stood by the fence; that when prosecutrix reached the fence defendant was 'on the blanket with his privates in his hands'; that prosecutrix 'got scared and ran back in the car'; that defendant then put the blanket back in the trunk of the car and entered the car with prosecutrix who had 'scooted over' in the seat as far as she could; that defendant then 'scooted over' by prosecutrix and 'pulled my pants down to my knees * * * he (defendant) tried to get on top of me and I told him to stop'; that defendant 'just kept on saying, 'let me do it, let me do it''; that defendant had his hands on prosecutrix 'trying to hold me down so I couldn't get loose'; that at that time defendant's trousers were unbuttoned and his privates were out; that prosecutrix told defendant to stop and said 'If you don't let me alone, I'll tell my mother' and prosecutrix hit defendant on top of the head and was crying; that after about fifteen minutes defendant 'quit bothering me' and drove out of the cemetery, and drove prosecutrix to her home. Prosecutrix also testified that, 'He (defendant) told me not to tell anyone.' Prosecutrix did not tell her mother of defendant's above conduct until some time later, 'because I was scared. I was afraid something might happen.'

Prosecutrix also testified that defendant thereafter came to her home and stood near the steps and in the yard, when she was there alone in the kitchen doing the ironing, called to her by name and said he wanted to show her something; that she thereupon became frightened and locked herself in the bathroom; and that after that incident prosecutrix told her mother of defendant's above set out conduct in the cemetery on the prior occasion.

Defendant testified that the only occasion he ever took prosecutrix to Southwest City was September 7, 1948; that on that occasion he went there for some medicine; that he never took prosecutrix to any other place, and that after he had purchased the medicine on that occasion in Southwest City he took prosecutrix directly to her home; that that entire September, 1948, trip consumed only about thirty minutes; that prosecutrix was not in his car in November of 1950; that he never took prosecutrix to the cemetery, and never did expose himself to her or pull her pants down or attempt to get on top of her; that he never did at any time molest prosecutrix, place his hands on her, fondle her or expose himself to her.

The testimony above set out was substantial evidence to support the verdict returned by the jury, and defendant's first above noted contention must be overruled. State v. Kornegger, 363 Mo. 968, 255 S.W.2d 765.

As to defendant's contention that one of the jurors was disqualified under the statute, this matter appears first in defendant's unverified motion for new trial and was not otherwise called to the attention of the trial court. It does not appear at all in the record of the trial. Examination of the transcript discloses that no objection was made at all to the juror named in the motion for new trial, or to any juror. Statements of fact asserted in the motion for new trial do not prove themselves and cannot be considered by an appellate court where the record of the case is silent with respect to such claimed matters of fact. State v. Burks, Mo.Sup., 257 S.W.2d 919, 921(5); State v. Henderson, 356 Mo. 1072, 204 S.W.2d 774, 780(12); State v. Jacobson, 348 Mo. 258, 152 S.W.2d 1061, 138 A.L.R. 1154; State v. Wilson, 230 Mo. 647, 132 S.W. 238; ...