State v. Clark

• Decision Date: 09 October 1944
• Docket Number: 38944
• Parties: State v. Kermit Clark, Appellant
• Court: Missouri Supreme Court

182 S.W.2d 619

353 Mo. 470

State v. Kermit Clark, Appellant

No. 38944

Supreme Court of Missouri

October 9, 1944

Appeal from Oregon Circuit Court; Hon. Gordon Dorris Judge.

Affirmed.

Roy McKittrick, Attorney General, and Robert J Flanagan, Assistant Attorney General, for respondent.

(1) The information is in proper form and is sufficient. State v Borchert, 279 S.W. 72; State v. Long, 108 S.W.2d 388. (2) The verdict is clear, definite and certain and responsive to the information. State v. Long, 108 S.W.2d 388; State v. Adams, 318 Mo. 712; State v. Pace, 269 Mo. 681; State v. Noland, 111 Mo. 473. (3) The evidence is sufficient to support the verdict. State v. Hamilton, 263 S.W. 127, 304 Mo. 19; State v. King, 119 S.W.2d 277; State v. Cook, 207 S.W. 831; State v. Thomas, 1 S.W.2d 157. (4) Appellant's assignment of error No. 2 to the effect that the court erred in refusing to give Instruction 8, presents nothing for review by this court. Sec. 4125, R.S. 1939; State v. Summers, 6 S.W.2d 883, 320 Mo. 189; State v. Jetts, 300 S.W. 752; State v. Sillyman, 7 S.W.2d 256; State v. Bowman, 12 S.W.2d 51. (5) The court did not err in refusing to allow counsel for appellant to cross-examine character witnesses as to whether the fact that the prosecutrix had intercourse with the defendant when the others were in the room and made no request for protection or help, would change their opinion as to the reputation of prosecutrix for virtue and chastity, and the previous character of prosecutrix for virtue and chastity. State v. Foley, 46 S.W. 733, 144 Mo. 600; 16 C.J. 582, sec. 1123. (6) The judgment and sentence of the court is sufficient and legal and conforms to the requirements of the law. Also assignment of error is not set out with particularity. In re Siegel, 263 Mo. 375; Sec. 4125, R.S. 1939.

OPINION

Ellison, J.

The appellant, Kermit Clark, a married man 34 years old, was convicted of having carnal knowledge of Ola Denny, an unmarried female 16 years old and of previous chaste character, in violation of Sec. 4394. ^[1] The jury assessed his punishment at imprisonment in the penitentiary for a term of two years. He has filed no brief. There were four assignments of error in his motion for new trial, complaining: that there was no substantial evidence to support the verdict; of error in refusal of an instruction; restriction of the cross-examination by his counsel of certain State's witnesses; and "that the sentence and judgment of the Court is not sufficient and legal, as required by the statute in such cases provided." This last assignment is too indefinite to comply with the requirements of the new trial statute, Sec. 4125. In fact, we are unable to determine from an inspection of the record just what it does mean. But one point arises on the record proper, concerning the sufficiency of the verdict. We take up that question first before stating further facts.

The information was in two counts, the first charging forcible rape under Sec. 4393, and the second, carnal knowledge under Sec. 4394, as first stated. The verdict was merely a general verdict of "guilty as charged in the information." It did not, therefore, specify on which of these two charges the conviction was based. And the State did not make a formal election between them in submitting its case. The rape statute does not fix any age limit for the rapist, but requires the forcibly ravished female to be sixteen years of age or more. The prosecutrix was 16 years old and came within it. The punishment ranges from death to imprisonment in the penitentiary for or between life and two years. The jury in this case assessed that minimum, which is also the maximum under the carnal knowledge statute. The latter requires the accused to be over seventeen years old (which the appellant here was) and also requires the female to be unmarried, of previous chaste character, and between the ages of sixteen and eighteen years (which the prosecutrix was). So the appellant could have been convicted under either statute, on a substantial showing of forcible ravishment over utmost resistance in addition to the other facts mentioned.

But as a matter of fact, as we shall presently see, the evidence that the prosecutrix did resist was exceedingly weak. When the cause was submitted to the jury the State's instructions were limited to the carnal knowledge theory but without making any formal election. The appellant did not object or ask an instruction specifically declaring the issue of forcible rape was withdrawn from the jury. The court's judgment and sentence was for carnal knowledge alone. Appellant's motion for new trial did not question this procedure, unless the enigmatic assignment mentioned in the first paragraph of this opinion attempted to raise the point. Unquestionably, in those circumstances appellant has waived any objection to the manner in which the case was submitted. The same act of sexual intercourse was the basis for both charges. And it can be said the question whether the State should have been compelled to elect on which count it would go to the jury, at least rested in the discretion of the trial court. State v. Goodale, 210 Mo. 275, 282, 109 S.W. 9, 11; State v. Gant (Mo. Div. 2), 33 S.W.2d 970, 972(2).

But even so, the question still remains whether the verdict was fatally erroneous in failing to specify the charge on which the conviction was based. In State v. Cox (Mo. App.), 266 S.W. 734(2) the defendant was charged in the single count of an information with manufacturing intoxicating liquor, selling it, and possessing a still. The State made no formal election but the court's instructions confined the charge to the possession of the liquor, and the jury returned a verdict of "guilty as charged." It was held fatally ambiguous. In the Gant case cited in the preceding paragraph the information charged in one count rape without force on a girl less than sixteen years old, under Sec. 4393, and in the other count carnal knowledge of a ward by her guardian under Sec. 4406. The court instructed on both with directions that the jury could convict on either count but not both. The jury returned a general verdict of guilty, and assessed the punishment at a term of two years in the penitentiary, which was the minimum under Sec. 4393 and within the five year maximum under Sec. 4406. It was ruled the verdict was bad.

Three cases on that point are cited by the opinion in the Gant decision. In two of them the court submitted and separately instructed on burglary and larceny, but the jury returned a general verdict of guilty in one case, and a verdict of guilty of both crimes jointly, with a single punishment, in the other. In the third case the defendant was charged in one count with carnal knowledge and in another with seduction under promise of marriage. The jury returned a general verdict of guilty and assessed a two year penitentiary sentence as punishment. The circuit court's judgment imposed that one punishment for both offenses. In all of these cases the verdict was condemned. But it seems to us they are distinguishable from the instant case.

Thus in State v. Adams, 318 Mo. 712, 716, 723, 300 S.W. 738, 739, 742(9), the information contained four counts charging embezzlement, two as agent, and two as bailee (the original record here discloses), under Secs. 4471 and 4473. The punishment under both statutes is the same. The State made a formal election at the close of its case to stand on the first count, which of course means, so far as the jury was concerned, that they were only instructed thereunder. The jury returned a verdict of "guilty of embezzlement, as charged in the information." But all four counts charged embezzlement, so the verdict was no more enlightening than if that word had been omitted therefrom. The decision held: "The case being submitted to the jury on one charge only, under the first count of the information, the verdict . . . is responsive and sufficient in form and substance."

This Adams case refers to two decisions as authority. In both the information contained only one count and charged only one offense. But the very citation of these cases obviously implies that even though the information contains more than one count and charges more than one offense, yet if all but one are abandoned in the giving of instructions, and the case is submitted to the jury on that one charge, the result, as regards a general verdict, is the same as if there had been only one charge in the first place. The jury is not concerned with the State's formal election. That is a matter for the court alone, since the jury is guided only by the court's instructions. The same practice in our tort law is familiar. Where the plaintiff pleads and introduces evidence on more than one assignment of negligence, but submits his case to the jury on instructions presenting less than the whole number of those assignments, the others are treated as abandoned. We think the verdict in this case was sufficient.

Appellant did not offer an instruction in the nature of a demurrer to the evidence, either at the close of the State's case or the whole case. He did make that assignment in his motion for new trial. The general rule in criminal cases is, that error in overruling a defendant's demurrer to the sufficiency of the evidence at the close of the State's case in chief will be waived if the defendant does not stand thereon but introduces evidence in his own behalf. See many cases cited in 9 West's Mo. Dig., sec. 901, p. 522. But even though he fails to demur to the sufficiency of the evidence at the close of the whole case, he still can raise that point in his motion for new trial, in view of the fifth clause of Sec 4124 that "The court may grant a new trial . . . when the...