State v. Comer
| Decision Date | 09 December 1922 |
| Citation | 247 S.W. 179,296 Mo. 1 |
| Parties | THE STATE v. JAMES E. COMER, Appellant |
| Court | Missouri Supreme Court |
Appeal from Chariton Circuit Court. -- Hon. Fred Lamb, Judge.
Affirmed.
Kesterson & Kesterson for appellant.
(1) The court erred and manifestly abused its discretion in overruling and denying defendant's motion and application for continuance. (2) The verdict is against the law and the evidence and there is no evidence to substantially support the verdict. State v. Owsley, 102 Mo. 678; State v. Hahn, 189 Mo. 241; State v. Goodale, 210 Mo 275; State v. Fleming, 177 S.W. 299. (3) The court erred and manifestly abused its discretion in permitting the State's attorney to ask leading questions of the prosecutrix over the objection of the defendant. State v Fannon, 57 S.W. 75; State v. Steel, 126 S.W 406. (4) The court erred in refusing to strike out incompetent, irrelevant, and prejudicial evidence over the objection of the defendant. State v. Foley, 46 S.W. 733. (5) The court erred in giving State's Instruction 8, over the objection of the defendant. United States v. Bowen, 4 Cranch, 604; Mooney v. State, 33 Ala. 419; Roberts v. People, 19 Mich. 401; Cross v. State, 55 Wis. 261; State v. Fiske, 63 Conn. 388; Crosby v. People, 137 Ill. 325; Cline v. State, 43 Ohio St. 332; State v. Garvey, 11 Minn. 154; Scott v. State, 12 Tex.App. 31; Commonwealth v. Hagenlock, 140 Mass. 125; State v. Donovan, 61 Iowa 369. (6) The court erred in failing and refusing to instruct the jury upon common assault. State v. Matsinger, 180 S.W. 356; State v. Hoag, 134 S.W. 508; State v. Lackey, 132 S.W. 602; State v. Palmer, 88 Mo. 568. (7) The record does not show that the defendant was present when the jury returned its verdict. This constitutes error. State v. Buckner, 25 Mo. 167; State v. Schoenwald, 31 Mo. 147; State v. Braunschweig, 36 Mo. 397; State v. Able, 65 Mo. 37; State v. Beedle, 180 S.W. 888.
Jesse W. Barrett, Attorney-General, and J. Henry Caruthers, Special Assistant Attorney-General, for respondent.
(1) Assault with intent to rape is a felony. State v. Melton, 117 Mo. 618. Assault is complete when attempt is made with present means of carrying it into effect. State v. Shroyer, 104 Mo. 446; State v. Dalton, 106 Mo. 469. (2) The evidence is amply sufficient to sustain the conviction. State v. Edie, 147 Mo. 539; State v. Prather, 136 Mo. 24; State v. Dalton, 106 Mo. 469; State v. Shroyer, 104 Mo. 446; State v. Alcorn, 137 Mo. 123. (3) The allowance of leading questions is always discretionary with the court and unless manifestly abused the judgment will not be disturbed on that ground. State v. Wertz, 191 Mo. 586; State v. Knost, 207 Mo. 23; State v. George, 214 Mo. 269. (4) The testimony referred to by appellant and of which he complains that the court erred in refusing to strike out was brought out himself while cross-examining prosecutrix and he cannot therefore be heard to complain. Furthermore he gave no reason for striking same out. (5) Instruction 7, advising the jury appellant was on trial alone for an assault with intent to commit rape, was correct and properly given. State v. Montgomery, 63 Mo. 298. (6) Instruction 8, relating to the condition of the appellant as to being drunk or not, and informing the jury that drunkenness is no defense, is correct. State v. West, 157 Mo. 318. (7) The evidence in this case does not warrant an instruction on common assault. Appellant failed to offer or ask for such instruction and also failed to raise this point in his motion for new trial, hence nothing here for review on this point. State v. Alcorn, 137 Mo. 124. (8) The record shows the presence of the defendant in his own proper person at the beginning of the trial and it is presumed, in the absence of all evidence in the record to the contrary, that he was present during the whole trial. There is no evidence whatever in this record to the effect that defendant was not present when the verdict was returned. Hence nothing here for review on this point. Sec. 4008, R.S. 1919; State v. Long, 209 Mo. 379. (9) The court did not err in overruling appellant's motion for a continuance on the ground of surprise because of the failure of the State to indorse the names of all of the State's witnesses on the information. State v. Jeffries, 210 Mo. 322; State v. Barrington, 198 Mo. 66; State v. Myers, 198 Mo. 243.
An information was filed in the Circuit Court of Chariton County, Missouri, on January 18, 1921, in which defendant was charged with assault with intent to rape Ruth White in said county, on the -- day of December, 1920. The case was tried before a jury on February 10, 1921, and the following verdict returned:
The evidence on behalf of the State tended to prove the following facts: That Ruth White, a female, seventeen years old on October 21, 1920, lived at Salisbury, Missouri, with her mother and defendant, James E. Comer, her mother's husband, up to the time of this prosecution. Ruth White had two half sisters, one ten and the other four years of age, all of whom constituted the family on December 15, 1920. The house occupied by this family faced southward, with a south door opening into the front room, and a door near it opening into the southwest bedroom; then, a little farther on, another door opened into the kitchen from the front room. The southwest room was used as a bedroom, and contained two beds. Prosecutrix, Ruth White, occupied the bed in the northeast corner, and her half sister, Lida Comer, slept with her. Her mother and defendant, with the youngest half sister, occupied the other bed. On the evening of December 15th, defendant was at home and, after eating his supper, left the house and returned again about ten o'clock p. m. When appellant came into the house he turned the lights on for a few minutes, and then turned them off. While in the front room, he was heard to fall on the floor. Mrs. Comer went in to see what had happened, and asked defendant if he had not better go to bed. Thereupon, appellant went to the foot of his bed, pulled off his outside clothing, then went to the bed of prosecutrix. Mrs. Comer took him by the arm, and told him it was not his bed, whereupon he said, "I know what I am doing." He attempted to get on the bed occupied by the prosecutrix, but his wife and older daughter held him off. Prosecutrix managed to get to the front door, and attempted to unlock it. Defendant grabbed her by the right shoulder, and she thereupon screamed. He threw her back on the bed, and she kept screaming. Every time she screamed, he slapped her, and finally grabbed her throat. He then laid her on the bed, and threw his two feet over hers, put one hand over her mouth and the other on her body. She was only dressed with a nightgown. He put his hand around over her body, underneath her nightgown, and tried to separate her limbs. During all this time prosecutrix was trying to get away, but could not move. Defendant's older daughter grabbed his arm, but he made her turn it loose. At this time Mrs. Comer was not at the house, and defendant did not stop until Town Marshal Simmons entered the bed room and spoke to him. He then turned over on his back, released prosecutrix, and she then got up and left the room. Mrs. Comer came in with the marshal. The latter motioned to prosecutrix, and she went out on the porch, but before she had time to tell him what the trouble was, defendant came to the door, took the marshal by the arm, and told him he wanted to talk with him. The mother of prosecutrix told her to run, which she did, going across the street to Mr. Prescott's house, who was a neighbor. Prosecutrix testified that in July, before the above assault, defendant made an effort to have sexual intercourse with her; that he tried to hire her, but she refused. He told her he would not force her, and requested her not to tell anybody; that her mother was sick in bed at the time; that on the above occasion he put his hand on her "right there" (indicating); that she told her mother about this affair. The State's evidence tends to show that defendant had been drunk during the day of the assault, but knew what he was attempting to do when the assault was made.
Bert Prescott and wife, who lived across the street from defendant, had gone to bed about ten o'clock the night of the assault, had been asleep and were awakened by the screams of a woman in the Comer house. Mr. Prescott looked out through the glass of his front door, and saw Mrs. Comer standing on her front porch. Prescott asked her what was the matter, and she made no answer, but came running across the street to his front porch. Whereupon, Prescott's oldest son called the marshal, who came to defendant's residence at once.
The evidence on behalf of appellant was as follows:
Cruse Simmons, the town marshal, testified that when he went to defendant's house he found appellant, the prosecutrix and his older daughter all on the bed; that defendant didn't do anything until he called him; that he then got up, after the prosecutrix got up and went into the room where her mother was; that defendant had on his night clothes; that after talking a while with defendant, the marshal left; that he was there about twenty minutes, without arresting defendant; that everything was quiet, and there was no trouble that he could see or hear.
Defendant filed motions for a new trial and in arrest of judgment. Both motions were overruled, defendant duly sentenced, and judgment rendered in accordance with the terms of...
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