State v. Cobb

• Decision Date: 13 June 1949
• Docket Number: 41357
• Citation: 221 S.W.2d 745,359 Mo. 373
• Parties: State of Missouri, Respondent, v. John Wesley Cobb, Appellant
• Court: Missouri Supreme Court

221 S.W.2d 745

359 Mo. 373

State of Missouri, Respondent, v. John Wesley Cobb, Appellant

No. 41357

Supreme Court of Missouri

June 13, 1949

Rehearing Denied July 11, 1949.

Appeal from the Circuit Court of City of St. Louis; Hon. William S. Connor, Judge.

Affirmed.

SYLLABUS

The defendant's conviction of statutory rape is affirmed. Venue was sufficiently established. The jury was limited to one specific act and the evidence made a submissible case. The failure of the prosecutrix, who was below the age of consent, to make a complaint does not carry a presumption that her story was false. There were no reversible errors as to instructions given or refused. The record does not disclose that defendant's counsel was denied sufficient time for argument.

Hay & Flanagan and Harold O. Piening for appellant.

(1) The court erred in failing to require the State to elect on which of several instances of intercourse it will rely. State v. Hurley, 146 S.W. 1154, 242 Mo. 452; State v Henderson, 243 Mo. l.c. 508; State v. Palmberg, 97 S.W. 566, 199 Mo. 233; State v. Scott, 72 S.W. 897, 172 Mo. 536. (2) The court erred in failing to sustain defendant's motion for directed verdict being in the nature of a demurrer at the close of the State's case, in view of the fact that there was not sufficient evidence to support the charge set out in the information. State v. Patrick, 107 Mo. 147; State v. Brown, 209 Mo. 413. (3) The court committed reversible error in failing to sustain defendant's motion for directed verdict being in the nature of a demurrer at the close of the State's case, in view of the fact that there was no proof, either directly or indirectly, that the crime charged was committed in the City of St. Louis, Missouri. State v. Schuerman, 70 Mo.App. 518; State v. McGinnis, 74 Mo. 245; State v. Hattle, 78 S.W. 311, 104 Mo.App. 34; State v. Apperger, 80 Mo. 173; State v. Igo, 18 S.W. 923, 108 Mo. 568; State v. Miller, 71 Mo. 251; State v. Bobb, 76 Mo. 501; State v. Wheeler, 79 Mo. 366; State v. Hughes, 82 Mo. 86. (4) The court committed reversible error in failing and refusing to give and read to the jury an alibi instruction offered by defendant's counsel. State v. Johnson, 3 S.W. 868, 91 Mo. 439; State v. Edwards, 19 S.W. 91, 109 Mo. 315; State v. Kaplan, 66 S.W. 967, 167 Mo. 298. (5) The court committed reversible error in failing to instruct on all of the law applicable to the case, and particularly on the good character of defendant. Sec. 4070, R.S. 1939; State v. Anslinger, 71 S.W. 1041, 171 Mo. 600; State v. Wertz, 90 S.W. 838, 191 Mo. 569; State v. Maupin, 93 S.W. 379, 196 Mo. 164; State v. Nienaber, 148 S.W. 537, 347 Mo. 541. (6) The court committed reversible error in failing to instruct on all of the law applicable to the case, and particularly on the law of attempted rape, assault with intent to rape and on the law of common assault; for the State's evidence had put these matters in issue before the court and the jury, and therefore it was the court's duty to instruct the jury on this as well as on all other points of evidence in the case. The court's failure to do so biased and prejudiced the jury against this defendant. Sec. 4070, R.S. 1939; State v. Hoag, 232 Mo. 308, 134 S.W. 509; State v. Mason, 322 Mo. 194, 14 S.W.2d 611; State v. Matsinger, 180 S.W. 85; State v. King, 342 Mo. 975, 119 S.W.2d 277; State v. Famber, 214 S.W.2d 40. (7) The court committed reversible error in failing and refusing to give and read to the jury the following instruction: "You are instructed that if the jury believe from the evidence that, at the time the offense is alleged to have been committed, the prosecuting witness made no outcry, and did not, as soon as an opportunity offered, complain of the alleged offense to others, but concealed it for a considerable length of time thereafter, then you should take this circumstance into consideration with all the other evidence in determining the guilt or innocence of the defendant." State v. Bigley, 247 S.W. 169; State v. Witten, 13 S.W. 871, 100 Mo. 525; State v. Wilkins, 100 S.W.2d 889; State v. Cardello, 130 S.W.2d 498; State v. Palmer, 130 S.W.2d 599; State v. Patrick, 107 Mo. 147. (8) The court committed reversible error in failing and refusing to give and read to the jury the following instruction: "The jury are instructed that the charge of rape made by Gloria Fuhrmann against defendant remains uncorroborated by any evidence in this cause, now if the jury shall believe from the evidence in the cause that said Gloria Fuhrmann concealed the alleged rape until Friday, September 19, 1947, after the alleged commission of such rape upon her, then the law presumes such concealment inconsistent with defendant's guilt." State v. Tevis, 234 Mo. 276. (9) The court committed reversible error in giving and reading to the jury, over the objection of defendant, Instruction 1, for the reason that it told the jury that the defendant pleaded not guilty, thereby raising an issue of fact between defendant and the State of Missouri, which you are to determine from the evidence in the case, thus and thereby failing to instruct them fully, properly and according to the law, in that the defendant pleads not guilty, thereby raising an issue of fact between defendant and the State of Missouri, which you are to determine from all the facts and circumstances. See authorities under (6). (10) The court committed reversible error in giving and reading to the jury, over the objections of defendant, Instruction 1, for the reason that said instruction fails to require a finding of venue as laid in the information. See authorities under (3). (11) The court committed reversible error in giving and reading to the jury, over the objection of defendant, Instruction 1, for the reason that it told the jury in defining "carnally knowing," as that term was used in the instructions, that it was not necessary that there should have been any semen from the defendant; and thus in that respect, the instruction called the jury's attention to one evidentiary fact, amounting to a comment on the evidence, and served to emphasize in the minds of the jury, to the prejudice of defendant, the unfavorable facts testified to by the prosecuting witness tending to show that there had been such an emission. State v. Donnelly, 32 S.W. 1124, 130 Mo. 642. (12) The court committed error in giving and reading to the jury, over the objection of defendant, Instruction 1, for the reason that it is unsupported by the evidence, in that there was no substantial evidence or any evidence of an entry or penetration. State v. Evans, 267 Mo. 163, 183 S.W. 1059; State v. Hewitt, 259 S.W. 773; State v. Roch, 10 S.W.2d 928; State v. Walser, 318 Mo. 830, 1 S.W.2d 147; State v. Wertz, 191 Mo. 569, 90 S.W. 838. (13) The court committed error in giving and reading to the jury, over the objection of defendant, Instruction 1, for the reason that it authorized the assessment of punishment upon a finding that defendant was guilty of rape as charged in the information, rather than on a finding that he was guilty under the instructions as read to the jury. It, in effect, referred the jury to the information to determine the elements of the crime of rape rather than to the instructions. (14) The court erred in giving and reading to the jury, over the objection of defendant, Instruction 1, because it defined the crime charged and limited the authority of the jury in the consideration of the evidence to the date therein stated, when the testimony of the prosecutrix utterly and wholly failed to establish any definite and specific date that the alleged offense should have taken place, all in violation of defendant's constitutional right and privilege. State v. Caudle, 252 S.W. 701. (15) The court committed error in overruling defendant's motion for a directed verdict in the nature of a demurrer at the close of all the evidence because the City Hospital record disclosed that when the prosecutrix was examined on September 19, 1947 her hymen was intact, and, further, she stated that he, meaning her uncle, never inserted his organ. (16) The court committed reversible error in overruling defendant's motion for a directed verdict in the nature of a demurrer at the close of all the evidence because the State failed to establish and prove a specific and definite day certain when the alleged offense should have occurred, all of which was in violation of defendant's constitutional right and privilege. Mo. Constitution, Art. 2, Sec. 22; State v. Caudle, 252 S.W. 701; State v. Amende, 92 S.W.2d 106, 338 Mo. 717; State v. Palmberg, 97 S.W. 566, 199 Mo. 233. (17) The court committed error in overruling defendant's motion for a directed verdict in the nature of a demurrer at the close of all the evidence, because the testimony was wholly uncorroborated and was so unsatisfactory that it would be dangerous to submit said case to the jury when a niece and uncle relationship existed between the defendant and prosecutrix. State v. Brown, 209 Mo. 413.

J. E. Taylor, Attorney General, and Robert L. Hyder, Assistant Attorney General, for respondent.

(1) There was ample evidence to sustain the verdict. Bill of Exceptions 53, 58, 281, 282, 370, 477, 314a, 465. (2) While the court failed to instruct on the question of previous good character, other instructions fully protected the rights of the defendant, and there was no evidence of other acts showing bad character by the State. State v. Havens, 177 S.W.2d 625. (3) There was no evidence of an offense other than that charged, and the defendant was not prejudiced by failure to instruct on common assault or lesser offenses. (4) There was no error in the failure of the court to instruct on outcry by the prosecutrix, because of the youth of the victim and the close...