State v. Damon

Decision Date25 March 1943
Docket Number38253
PartiesState of Missouri, v. Victor L. Damon, Appellant
CourtMissouri Supreme Court

Appeal from Jackson Circuit Court; Hon. Ben Terte, Judge.

Reversed and remanded.

Clyde Taylor for appellant.

(1) The lower court erred in refusing to permit the jury on request by defendant to take the exhibits to the jury room during the jury's deliberation on the ground, as stated by the court that it had no power or authority to grant such permission over the objection of the State and that it had no discretion in the matter. In this connection the court erred in failing and refusing to exercise a discretion imposed in it by law. The lower court did have the power within its sound and judicial discretion to permit the exhibits so to be taken. In the court's refusal to exercise such discretion it denied to defendant an absolute legal right to have the court do so. This is error. Cases holding that whether a jury shall be permitted to have the exhibits during deliberation rests in the sound discretion of the court. 64 C. J. 1026; Toledo Co. v. Cameron, 137 F. 48; Cudahy v. Skoumal, 125 F. 470; Cornelius v. Grant, 8 Mo. 59; Henger v. Imboden, 12 Mo. 85; Stone v. McWilliams, 98 S.W. 828; Brown Shoe Co. v. North, 126 S.W. 988; Dougherty v. Gast, 95 S.W.2d 877; State v Johnson, 71 Mo. 613; Abbotts Civil Jury Trials (3d Ed.) p. 717; Sinter v. Railroad, 121 N.W. 113; Koosa v. Warten, 48 So. 544; Blackburn v. Railroad, 87 N.E. 579; Louisville v. Berry, 28 S.W. 499; Linck v. Lumber Co., 15 S.W. 208; Illinois Co v. Raff, 34 P. 545; Blazinski v. Perkins, 45 N.W. 947; Porter v. Mount, 45 Barbour, 422. (2) Cases holding that it is reversible error for a court to refuse or to fail to exercise a discretion imposed in it by law on the mistaken belief that it is without discretion, or for any other reason. The refusal to exercise a legal discretion is in and of itself error and deprives the defendant of an unqualified legal right. Cohen v. Young, 127 F.2d 721; Middleton v. K. C. Pub. Serv. Co., 152 S.W.2d 154; Filton v. Spiro, 78 F. 576; Mattox v. United States, 146 U.S. 140; 4 C. J. 798; 3 Am. Jur. 526; Hite v. Dell, 73 A. 72; Johnson v. Shumway, 26 A. 590; Martin v. Bank, 42 S.E. 558; Seibert v. Railway, 57 N.W. 1068; Avery v. Bowman, 39 N.H. 393; 20 R. C. L. 275; 3 C. J. 874; Ogden v. United States, 112 F. 122; Ford v. Hotel Co., 271 F. 625; Aden v. United States, 284 F. 13; Vastine v. Bailey, 46 Mo.App. 413; Iba v. Railroad, 172 Mo.App. 141, 157 S.W. 675; State v. Carmen, 41 S.W.2d 902. (3) The lower court erred in giving State's Instruction 4 on the question of intent. There was no issue of intention in this case. The instruction was upon a false issue, distracted the attention of the jury from the real issue of the case, was misleading and was reversible error. Cases holding that in this character of a case there is no issue of intent and no room for an instruction upon intent. State v. Sanders, 252 S.W. 973; State v. Spray, 74 S.W. 846; State v. Austin, 234 S.W. 802; Crinnian v. United States, 1 F.2d 643; Marshall v. United States, 197 F. 511; Fish v. United States, 251 F. 544; Grantello v. United States, 3 F.2d 117; 16 C. J. 589; McDaniel v. United States, 264 F. 733; Willetts v. State, 21 A. 327; State v. La Page, 57 N.H. 245; Regina v. Oddy, 5 Cox, l. c. 210; 4 English in Equity 572; People v. Sharp, 107 N.Y. 427. (4) Cases holding that an abstract statement of the law upon an issue not in the case tends to broaden the issues, to confuse the jury and to invite error, and that the giving such an instruction is reversible error. Lewis v. K. C. Pub. Serv. Co., 17 S.W.2d 359; Wilsch v. Gleifort, 259 S.W. 856; Moran v. Railroad, 255 S.W. 331; Salmon v. Helena Box Co., 158 F. 300; Schipper v. Brashier, 132 S.W.2d 993; Humphreys v. Railroad, 83 S.W.2d 589; King v. Reith, 108 S.W.2d 1; Purles v. Feldman, 28 S.W.2d 375; Birdsong v. Jones, 30 S.W.2d 109; Christian v. Reichholdt, 150 S.W.2d 527; Gillog v. Commission, 153 S.W.2d 26. (5) Cases holding that error is presumed to be harmful and that the burden is on him in favor of whom error is committed to demonstrate that no conceivable injury could have resulted. Avery v. Ins. Co., 280 S.W. 726; Perry v. Van Matre, 161 S.W. 643; Brown v. Railroad, 281 S.W. 452; Maloney v. Bank, 232 S.W. 133; Aronvitz v. Arky, 219 S.W. 620; Lester v. Hughley, 230 S.W. 355. (6) The rule is particularly applicable to criminal cases. State v. Shipley, 74 S.W. 612; State v. Allen, 246 S.W. 946; State v. Wilson, 148 S.W. 534; State v. Burryard, 161 S.W. 756; State v. Fleetwood, 127 S.W. 934; State v. Richards, 67 S.W.2d 58; State v. Banton, 111 S.W.2d 516; State v. Sanders, 232 S.W. 973. (7) The court erred in refusing to give defendant's requested Instruction E explaining to the jury the legal effect of the failure of a party to produce a material witness where the circumstances are such that such party would be expected to call such witness. 2 Wigmore on Evidence (3rd Ed.), sec. 285; 22 C. J. 116; 64 C. J. 513; 31 C. J. 853. See Missouri cases collected in 31 C. J. S., p. 853, note 4; State v. Huff, 61 S.W. 900; Cass County v. Greene, 66 Mo. 498; Russell v. Franks, 120 S.W.2d l. c. 41; Baker v. Railroad, 39 S.W.2d 535; Alexander v. Railroad, 38 S.W. 1023; State v. Trimble, 260 S.W. 1000; Koontz v. Railroad, 253 S.W. 413; Dunkeson v. Williams, 242 S.W. 653; Brigham v. Zollman, 220 S.W. 911; McCord v. Schaff, 216 S.W. 320; Early v. Ins. Co., 144 S.W.2d 860; Parsons v. Bank, 114 S.W.2d 203; McNicholas v. Banking Co., 112 S.W. 849; Streck v. Gas Co., 23 S.W.2d 1104; Beck v. Hauling Co., 293 S.W. 449; Tabor v. Bolt Co., 274 S.W. 911; 31 C. J., pp. 722, 732, 735. (8) The lower court erred in refusing to grant defendant's requested instruction in the nature of a demurrer to the evidence. The cases bearing upon this question are cited under the assignment of error that the verdict is not sustained by the evidence and that it is the duty of this court, as well as it was the duty of the lower court, to set the verdict aside. Cases holding that a sexual crime is a charge easily made, hard to prove and almost impossible to be defended against by one, no matter how innocent, and that it is the duty of the court to scrutinize the evidence and to set aside verdicts that aren't sustained by substantial, believable evidence. That the appellate courts will not hesitate to set aside verdicts in excess of this character where the conviction, from the whole record, is a manifest miscarriage of justice. 1 Hale Pleas of the Crown 635; State v. Seay, 222 S.W. 427; Curby v. Territory, 42 P. 953; Bueno v. People, 1 Colo.App. 232; Crockett v. State, 4 Ga. 185; Smith v. State, 77 Ga. 705; State v. Anderson, 59 P. 108; State v. Tomlinson, 11 Iowa 401; State v. Connelly, 57 Minn. 482; Oleson v. State, 11 Neb. 276; Matthews v. State, 19 Neb. 330; Reynolds v. State, 27 Neb. 90; State v. Hilberg, 22 Utah 27; Conners v. State, 47 Wis. 523; State v. Burgdorf, 53 Mo. 65; State v. Wilson, 91 Mo. 410; State v. Katz, 181 S.W. 425; State v. Atkins, 292 S.W. 427; State v. Lawhorn, 157 S.W. 344; State v. Remley, 237 S.W. 489; State v. McCrackin, 162 S.W.2d 853; State v. Wade, 268 S.W. 52; State v. Eslick, 216 S.W. 976; Burkett v. Gerth, 253 S.W. 199. (9) The Supreme Court has the power to grant a new trial on the ground the verdict is against the weight of the evidence. It is the duty of the court to exercise such power where the evidence of guilt cannot be believed by reasonable men. State v. Liston, 292 S.W. 45; State v. Prendible, 65 S.W. 559; State v. Francis, 98 S.W. 11; State v. Primm, 11 S.W. 732; State v. Huff, 621 S.W. 900; State v. Packwood, 26 Mo. 340; State v. Mansfield, 41 Mo. 470; State v. Gregory, 96 S.W. 47; King v. K. C. Life Ins. Co., 164 S.W.2d 465; State v. Liston, 292 S.W. 45; State v. Cohen, 100 S.E.2d 547; State v. Wilkins, 100 S.W.2d 893; Water v. Alt, 152 S.W.2d 141; State v. Martin, 162 S.W.2d 851; King v. Life Ins. Co., 164 S.W.2d 459.

Roy McKittrick, Attorney General, and Russell C. Stone, Assistant Attorney General, for respondent.

(1) The information is sufficient. Sec. 4650, R. S. 1939; State v. Hubbard, 295 S.W. 788; State v. Gurnee, 274 S.W. 58, 309 Mo. 6. (2) The verdict is in proper form and responsive. State v. Hannon, 7 S.W.2d 278; State v. Gurnee, supra. (3) There was substantial evidence to sustain the verdict. State v. Hubbard, supra; State v. Gurnee, supra. (4) Appellant assigns as error the giving of Instruction 4 at the instance of the State over his objections. State v. Futrell, 46 S.W.2d 588, 329 Mo. 961; Missouri Digest, Key No. 1176 (6); State v. Burgess, 193 S.W. 821. (5) Appellant assigns as error the failure of the court to give his instruction designated "E". Sec. 4125, R. S. Mo. 1939; State v. Reynolds, 131 S.W.2d 552, 345 Mo. 79. (6) Appellant assigns as error the failure of the court to permit exhibits to be taken into jury room during their deliberations. Sec. 4124, R. S. Mo. 1939; State v. Rusow, 106 S.W.2d 429.

Bohling, C. Westhues and Barrett, CC., concur.


Appellant was convicted under Sec. 4650, R. S. 1939 (13 Mo. St. Ann., Sec. 4650), of a crime against nature per os and sentenced to ten years' imprisonment. He appealed.

The offense is alleged to have been committed on Labor Day September 1, 1941, about 1:00 p. m., in an automobile operating over the public streets of Kansas City, Missouri on Arlene, a girl of eight years. After lunch (which was had between 12 n and 12:30 p. m.), Arlene and her sister Myrna, aged six, went out on 28th street, just east of Grove street, to play with some children. Appellant lived with his second wife in the thirty hundred block on Paseo. He was forty years of age, the father of two sons by his first wife. He had...

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