State v. Cooper

• Citation: 271 S.W. 471
• Decision Date: 19 March 1925
• Docket Number: No. 25785.,25785.
• Parties: STATE v. COOPER.
• Court: United States State Supreme Court of Missouri

271 S.W. 471

STATE v. COOPER.

No. 25785.

Supreme Court of Missouri, Division No. 2.

March 19, 1925.

Rehearing Denied April 9, 1925.

Appeal from Circuit Court, Oregon County; E. P. Dorris, Judge.

Mart Cooper was convicted of statutory rape, and he appeals. Affirmed.

J. D. Brooks, of Alton, and J. N. Burroughs and M. E. Morrow, both of West Plains, for appellant.

Jesse W. Barrett, Atty. Gen., and Harry L. Thomas, Sp. Asst. Atty. Gen., for the State.

DAVID E. BLAIR, J.

Upon change of venue from Howell county, defendant was convicted in Oregon county of the crime of statutory rape, as denounced by section 3247, R. S. 1919, as amended by Laws of 1921, at page 284a. He was sentenced to imprisonment in the state penitentiary for seven years, and has appealed.

The prosecutrix, Jessie Wright, lived with her parents about a mile south of West Plains and just across the road from the house where defendant lived. The alleged assault occurred May 21, 1923, at a time when Jessie was under 14 years of age. Defendant was 43 years old and was married, but had no children. The evidence does not shown any prior unpleasant relations between the two families.

The prosecutrix testified that the defendant had previously fondled her person and had placed his hands upon her privates and had inserted his fingers therein, and that he at one time had touched her private parts with his own; but that he did not then attempt to have sexual intercourse, after she objected. Defendant had been away from home for a year or more and, we gather from the record, that the prior acts, which went no further than fondling and insertion of his fingers, occurred before defendant went away. It is not clear when defendant returned to his home prior to May 21st.

The testimony of the girl tended to show that she left home on the night of the alleged assault with her sisters, who were going to the home of a minister residing nearby, and that she accompanied them as far as defendant's gate and turned in there. She heard some one calling out near the barn. She went there and found the defendant. Mrs. Cooper was not at home. The defendant renewed his familiarity with her person and fondled her privates, and asked her if she did not want to go in the house. She said she did not, but went with him nevertheless. It was about dark, and he turned on the electric light in the kitchen, and they then went into the living room. There he laid her down on the couch and had sexual intercourse with her. About that time they heard an automobile drive up and stop, and the defendant got up and started out of the room just as his wife and niece came to the kitchen door.

The defendant took his milk pail and went on out to milk the cow. Prosecutrix did not tell Mrs. Cooper or Miss Watts, defendant's niece, anything about what had occurred. Miss Watts sat down at the player piano and played several pieces. Prosecutrix testified that this occurrence was the first time she had ever had sexual relations with any man or boy. She did not notice any bleeding, and did not testify to any particular pain. She did not tell her mother of the occurrence then or until some time thereafter. She said defendant had warned her not to tell any one. None of the witnesses, not even Jessie's mother, noticed anything wrong with her while she was yet in defendant's house.

While Jessie was standing by the piano, her mother came to the door of the Cooper home, looking for her. That was about a half hour from the time she had left her own home. Within about a month prosecutrix developed pains and vomiting spells, and the family physician was called and treated her. She had previously suffered with somewhat similar symptons at her menstrual periods. Finally, in August following, she told her mother of her act with defendant. She was thereafter taken to the hospital and an abortion was performed upon her, which the attending physicians testified was necessary on account of her extreme youth and impaired physical condition.

The operation was performed about the middle of August, and the physicians testified that the fetus removed was about three months old. Much of the record is taken up with the testimony of the attending physicians and other physicians called by defendant as experts, in an effort by defendant to show that the size and development of the fetus were such as to indicate its age as at least four months. If the jury had believed this testimony, it would have been justified in finding that conception occurred earlier than May 21st, and that defendant was therefore not the father.

The testimony of the medical experts also dealt with the possibility of pregnancy at the first and only act of sexual intercourse between a young girl and a man. The testimony indicated the possibility, but improbability, of such result. Much of the medical testimony went to the likelihood of lasceration, pain, and shock to a young girl as the result of her first act of intercourse with a fully developed man. All agreed that prior insertions of the man's fingers in her private parts, with the attendant stretching of the parts, would tend to reduce the extent of such symptoms, when the act was finally accomplished.

The defendant flatly denied the story of the girl, in so far as it related to the act itself or previous acts of undue familiarity. He said that Jessie came to his place on the night in question, and that he told her his wife had gone to town to get his niece and would be back shortly, and asked her if she would come back again or wait, and she said she would wait. He then accompanied her to the house, turned on the back porch light, then turned on the kitchen and living room lights, and Jessie had just entered the living room when his wife and his niece came to the kitchen door. He greeted them and talk his milk pail and left Jessie with them.

From that point defendant's wife and niece took up the story and told how Jessie said she was "fine" when asked how she was. They both testified that they observed no excitement or anything unusual in her appearance, and that she procured several pieces for Miss Watts to play on the piano. They both testified that, as they were approaching the Cooper place, they saw Jessie leave the Toad and enter the yard going to defendant's house, and that they saw Jessie and defendant enter the house and turn on the lights. If their testimony was accepted by the jury, no time or opportunity was given for the occurrence of events, as claimed by prosecutrix.

The state offered testimony in rebuttal tending to show the impossibility of Mrs. Cooper or Miss Watts seeing Jessie leave the road and enter the Cooper yard from the place on the road where they claimed to have seen her, because the hill cut off the view from such point.

The evidence of the defendant also tended to show that the couch upon which prosecutrix said the act occurred, was only four and one-half feet long and about 22 inches wide, with end pieces and a back. The inference desired from such testimony was doubtless the improbability of such an act being accomplished thereon.

At the conclusion of defendant's case, the state introduced evidence tending to show that defendant sustained a bad reputation for morality. In turn, defendant offered testimony to the contrary. Cross-examination of defendant's witnesses developed the existence of at least rumors of prior sexual misconduct on his part.

I. Defendant complains of the action of the court in overruling his application for continuance, based upon the absence of a material witness and the illness of one of his attorneys. As the record shows that, even though he may have been ill, such counsel participated in the trial, no further notice need be taken of that alleged ground for continuance.

The absent witness was Elvis Groce, who was alleged to be in the state of California at the time. The testimony expected from him went to the impeachment of the prosecutrix, and did not relate to any facts in the case tending directly to show defendant's innocence. A previous application for continuance, because of the absence of the same witness and others, had been sustained at a prior setting of the case. Defendant also complains that the prosecuting attorney refused to waive the statutory time for taking depositions. It does not appear that any application was made to the court to shorten the time.

The court did not err in overruling such application for continuance. No abuse of the court's discretion appears. State v. Cain, 247 Mo. 700, loc. cit. 705, 153 S. W. 1039; State v. Salts, 263 Mo. 304, loc. cit. 314, 172 S. W. 373; State v. Hilsabeck, 132 Mo. 348, loc. cit. 357, 34 S. W. 38; State v. Yeager (Mo. Sup.) 209 S. W. 883.

We have read the cases which defendant cites to this proposition. They all recognize the rule that the granting or refusal of applications for continuance rests largely in the sound discretion of the trial court. In the cases cited, where the overruling of the application was held to be error, the court clearly abused its discretion. Such was not the case here.

II. The defendant complained in his motion for new trial of numerous rulings of the trial court upon the admission and exclusion of testimony. He is represented here by able counsel, who have pointed out in their brief matters of that character, upon which they now rely, and we will consider only the points briefed.

(a) It is said that the court erred in permitting the state to ask defendant's character witnesses, upon cross-examination, whether they had heard that defendant had been charged with other crimes not charged in the information. The record shows that witnesses who testified that defendant bore a good reputation for morality were asked if they had not heard it rumored that defendant had lived in Kansas City with a woman other than his wife, and if they had not heard that he was the father of an illegitimate child living at or near West Plains. One or two of such...