State v. Comer

• Decision Date: 09 December 1922
• Docket Number: No. 23730.,23730.
• Citation: 296 Mo. 1,247 S.W. 179
• Parties: STATE v. COMER.
• Court: Missouri Supreme Court

247 S.W. 179

296 Mo. 1

STATE v. COMER.

No. 23730.

Supreme Court of Missouri, Division No. 2.

December 9, 1922.

Appeal from Circuit Court, Chariton County; Fred Lamb, Judge.

James E. Comer was convicted of assault with intent to rape, and he appeals. Affirmed.

Kesterson & Kesterson, of Princeton, for appellant.

Jesse W. Barrett, Atty. Gen., and Henry Caruthers, Sp. Asst. Atty. Con., for the State.

Statement.

RAILEY, C.

An information was filed in the circuit court of Chariton county, Mo., 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:

"We, the jury, find the defendant guilty as charged in the information, and assess his punishment at a term of two years in the State Penitentiary. George M. Dewey, Foreman."

The evidence on behalf of the state tended to prove the following facts:

That Ruth White, a female, 17 years old on October 21, 1020, lived at Salisbury, Mo., 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 10 and the other 4 years of age, all of whom constituted the family on December 15, 1020. 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 10 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 loom he was heard to fall en 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. Corner 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 or her body. She was only dressed with a nightgown. He put his hand around over her body, underneath her nightgown, and `rigid to separate her limbs. During all this lime 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 bedroom 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 parch, 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 thin 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 10 p. m. the night of the assault, hod 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. Corner standing en 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 eldest 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 lie went to defendant's house he found appellant, the prosecutrix, and his older daughter all on the bed; that defendant did not 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 20 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 said verdict. From said judgment defendant duly appealed to this court.

Such other matters as may be deemed important will be considered in the opinion.

Opinion.

1. The information in this case is based upon section 3263, R. S. 1919, and is sufficient as to both form and substance. State v. Payne, 194 Mo. loc. cit. 450, 92 S. W. 461; State v. Neal, 178 Mo. loc. cit. 69, 76 S. W. 958.

2. The trial court did not abuse its discretion in overruling appellant's application for a continuance. It reads as follows:

"Comes now the defendant and moves the court to continue the cause herein for the reason that the defendant is surprised on account of the failure of the state to indorse upon his information the names of the witnesses as provided by statute.

                             "[Signed] Harry K. West."
                

The application was not sworn to, states no facts warranting a continuance, and no evidence was offered in support of same. The application was without the slightest merit, and properly overruled.

3. It is insisted by appellant that his demurrer to the evidence at the close of the case should have been sustained. The facts are fully set out in the preceding statement, and speak for themselves. The testimony of the prosecutrix is uncontradicted, clear, reasonable, and bears upon its face the impress of truth. The screams which she uttered while defending herself against appellant's assaults were heard across the street by Mr. Bert Prescott, whose son called the town marshal and requested the latter to go to defendant's residence. The prosecutrix, according to the testimony, was 17 years of age, and was living with defendant as a member of his family. It was his plain duty, under the law, to protect her from such assaults as he made upon her person. If he had succeeded in accomplishing his purpose, he would undoubtedly have been guilty of a felony. Section 3260, R. S. 1919; State v. Kyle, 259 Mo. 401, 168 S. W. 681; State v. Nibarger, 255 Mo. 289, 164 S. W. 453; State v. Sibley, 131 Mo. 519, 33 S. W. 167.

Under section 3263, R. S. 1919, heretofore quoted, defendant was found guilty of a felony in assaulting the prosecutrix, and attempting to have sexual intercourse with her without her consent and against her will. If the testimony of the prosecutrix was false and unfounded, defendant had ample opportunity to show this fact. His daughter, Lida Comer, 10 years of age, was present when the assault was made, and defendant did not call her as a witness in his behalf. Both he and his wife were competent witnesses in his behalf, and neither testified. In other words, the testimony of prosecutrix as to the felonious assault and defendant's effort to have sexual intercourse with her in July, while his wife was sick, stands unchallenged. It was the peculiar province of the jury to weigh the evidence and pass upon the facts of this case. The verdict of the jury met with the approval of the trial judge, and is amply supported by substantial evidence. State v. Urspruch, 191 Mo. loc. cit. 48, 49, 90 S. W. 451; State v. Payne, 194 Mo. 442, 92 S. W. 461; State v. Pierce, 243 Mo. 524, 147 S. W. 970; State v. Fleming (Mo. Sup.) 177 S. W. loc. cit. 302. The demurrer to the evidence was properly overruled.

4. The trial court did not abuse its discretion in permitting the prosecuting attorney to ask three or four leading questions during the examination of prosecutrix. She had...