State v. Daegele

Decision Date13 May 1957
Docket NumberNo. 2,No. 45859,45859,2
Citation302 S.W.2d 20
PartiesSTATE of Missouri, Respondent, v. George William DAEGELE, Appellant
CourtMissouri Supreme Court

No attorney for appellant.

John M. Dalton, Atty. Gen., Russell S. Noblet, Richard W. Dahms, Asst. Attys. Gen., for respondent.

EAGER, Presiding Judge.

Defendant, George W. Daegele, was convicted of molesting a named female child, twelve years of age, as charged by amended information under the provisions of Section 563.160, RSMo 1949, V.A.M.S. A change of venue had been taken by defendant from Johnson County to Lafayette County. Defendant was sentenced to imprisonment for five years, in accordance with the verdict of the jury, and he has appealed. We shall merely refer to the child in question as the prosecutrix; her name sufficiently appears throughout the record.

Since appellant has filed no brief here, we will consider the formal parts of the record, and such assignments of the motion for new trial as are sufficiently specific under our Rule 27.20, 42 V.A.M.S. At the outset we eliminate as insufficient the assignments that the verdict is against the greater weight of the credible evidence (State v. Stucker, 352 Mo. 1056, 180 S.W.2d 719; State v. McHarness, Mo., 255 S.W.2d 826), and that the verdict is contrary to law (State v. McHarness, Mo., 255 S.W.2d 826; State v. Conway, 348 Mo. 580, 154 S.W.2d 128). The other contentions of error will appear as they are discussed in the opinion.

We shall first outline, as briefly as we may, the evidence of the state. On September 19, 1955, sundry children in Warrensburg were on their way back to school after the lunch period, and it was raining lightly; as the prosecutrix approached a street intersection in a residential district, a Ford car turned the corner in front of her and came to a rather sudden stop. A man got out, pulling a plastic raincoat over his head, and approached the girl; he told her that he worked for an insurance company and that he had a check for her father which 'couldn't wait'; that she should get in his car and that they would go for the check. As the girl proceeded, slowly, to his car and got in it, the man walked up into the yard of the residence on the corner, where he was hidden momentarily from the girl; however, he came back almost immediately, got into the car, and 'zoomed' off. This man was positively identified as the defendant by two adult witnesses who had observed these occurrences from a porch approximately 40 feet from his car; one of these witnesses noted and wrote down the license number of his car.

At this point we are forced to recite the facts in more detail than we would normally do in a case of this character, because of the contention that an instruction is broader than the evidence and also broader than the information. Defendant drove south of Warrensburg on Highway 13 for some distance, and turned off on a side road; the prosecutrix testified that defendant there tried to kiss her, that she slapped him, that he then pulled her leg behind his back and 'started forward to pull down my pants'; however, the prosecutrix succeeded in getting her leg down, pulled down her skirt, and began to cry. Defendant then put the car in motion, and went back to Highway 13, where he drove northward, slowing down to about 10 miles an hour; while so doing he opened his trousers, exposed himself, and prevailed upon the prosecutrix to rub what he called 'the stick,' upon his statement she had to do so in order to get back to school. After a short time she 'got mad' and quit, and as defendant turned into another side road, she jumped out of the car, hailed a passing truck, and was taken to a filling station on the edge of Warrensburg from which the Highway Patrol was called. From pictures, in person at the jail in Warrensburg, and in person at the trial, the prosecutrix identified the defendant as the man who had committed these acts.

The locale of all the offenses was shown to be in Johnson County. The defendant was brought back from Dayton, Ohio, by extradition. One of the deputy sheriffs who returned him testified that he denied the crime, but that, on the return trip, he asked if the girl was injured 'when she jumped from the car,' stating further that he had liability insurance on the car; this deputy further stated that defendant had been told nothing, in his presence, about the girl jumping from the car, and that defendant had been continuously in his presence.

The evidence on behalf of defendant was to the effect that the defendant was in the circuit court in Kansas City, Missouri, on the morning in question and that he was also in Kansas City in the early afternoon of that day. The details are here immaterial; from this evidence, if believed, the jury might conceivably have found that defendant could not have been in Warrensburg, and at the other stated locations in Johnson County, at the times when the offense or offenses were actually committed Certain details of that defense testimony will be referred to later.

We shall dispose first of defendant's last assignment that his motions for discharge should have been sustained. Considered broadly as a contention that there was no substantial evidence to support the verdict, the assignment is perhaps sufficient. State v. Tharp, 334 Mo. 46, 64 S.W.2d 249, 253; State v. Henderson, 356 Mo. 1072, 204 S.W.2d 774, 777. It is entirely clear to us that the state's evidence, as outlined in our recital of the facts, did constitute substantial evidence of the offense charged, and that, if believed, it fully warranted a conviction under Sec. 563.160, supra. The point merits no further attention. See, generally, State v. Kornegger, 363 Mo. 968, 255 S.W.2d 765. Upon such objection, the state's evidence, with the legitimate favorable inferences therefrom, is to be taken as true and defendant's contradictory evidence disregarded. State v. Hinojosa, Mo., 242 S.W.2d 1.

In the opening statement of the prosecution counsel stated that three witnesses identified pictures of the defendant taken from police files. No objection was made at the time, but at the conclusion of the entire statement counsel for defendant objected and moved that the jury be discharged. The court sustained the objection and offered to instruct the jury to disregard the statement; counsel declined this offer, stating that such action would only serve to call further attention to the matter. The court, at this point, cautioned counsel that they should not thereafter 'refer to any police file.' We thus see that defendant stood strictly on his motion to discharge, declining all other relief. The statement was improper, but in view of the fact that the trial court heard it, considered its probable effect, and was in much better position than are we to judge of its effect, we decline to hold that the failure to discharge the jury was error. It is hardly necessary to say that in such matters the trial court properly has a wide discretion which will not be interfered with unless an abuse appears. State v. Green, Mo., 292 S.W.2d 283, 288.

We next consider together the complaints that the trial court erred in permitting the prosecutrix to be present in a prominent position in the courtroom when not testifying, and in permitting her parents to be present during her testimony. The allegations of a motion for new trial are not self-proving. The record does not show that the prosecutrix was present, in a 'prominent position' or otherwise, except when she was testifying, nor that her parents were present at all; the court did rule, however, that the prosecutrix could remain in the courtroom and that her parents might be present unless they were subpoenaed as witnesses; they had not been subpoenaed and did not testify. Aside from that state of the record, the exclusion or nonexclusion of witnesses in Missouri courts has been a matter wholly within the discretion of the trial court since early days. State v. Hughes, 71 Mo. 633; King v. State, 1 Mo. 717; State v. Fitzsimmons, 30 Mo. 236. It is stated in the Hughes case that the rule '* * * may be so molded as to meet the requirements of justice in each particular case.' Of the later cases, see: State v. Whitworth, 126 Mo. 573, 29 S.W. 595; State v. Lee, Mo. App., 298 S.W. 1044; State v. Compton, 317 Mo. 475, 296 S.W. 137; State v. Tummons, Mo., 34 S.W.2d 122. The Hughes case, supra, involved prosecuting witnesses, and the Whitworth case, supra, the father of a prosecutrix. The point is rejected in both particulars.

We next consider the contention that the court erred in permitting defendant's witness Shepard, a lawyer, to testify upon cross-examination and over objection, that he was representing defendant in a criminal case in Jackson County, in that this informed the jury that defendant 'was charged with another crime.' Shepard testified that on direct examination that he had appeared with defendant as his counsel in the circuit court in Kansas City on the morning of September 19, Sec.955; much of his testimony concerned the precise time when the witness and defendant were there together. On cross-examination counsel for the state asked the witness whether this was in the civil or criminal division. The objection made was that this 'wouldn't be material.' The court overruled the objection and the witness answered that 'it was a criminal action.' The error now assigned is of more significance than the objection made at the trial. If we assume, however, that the objection as made was sufficient, which we doubt, we hold that the admission of the answer was not prejudicial, in the light of other evidence. The next witness for defendant was one Nick DePasco who testified that he was a professional bondsman, that he was with defendant at the courthouse in Kansas City on the morning in question, that he was then on a bond for the defendant, and that defendant was required to be in court on that day. We hold that defendant thus...

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