State v. Davis

• Decision Date: 14 November 1911
• Citation: 237 Mo. 237,140 S.W. 902
• Parties: STATE v. DAVIS.
• Court: Missouri Supreme Court

140 S.W. 902

237 Mo. 237

STATE v. DAVIS.

Supreme Court of Missouri, Division No. 2.

November 14, 1911.

1. INDICTMENT AND INFORMATION (§ 202) — DUPLICITY — OBJECTIONS AFTER VERDICT.

Where an information charged that accused assaulted a female child under the age of 14 years, and her did forcibly ravish and carnally know, and the state, upon motion of accused, elected to proceed against him for carnally knowing a female child under the age of 14, the information was sufficient after verdict, for after verdict accused cannot complain that it is double in charging both rape by force and rape in carnally knowing a female child under 14 years of age.

2. RAPE (§ 60) — VERDICT — SUFFICIENCY.

In a prosecution for rape, where the information charged that defendant assaulted a female child under the age of 14 years, and her did forcibly ravish and carnally know, and the state upon defendant's motion elected to proceed against him for carnally knowing a female under the age of 14 years, a verdict finding defendant guilty of rape as charged and that the prosecuting witness was under 14 years of age, and assessing the punishment at five years in the penitentiary, was sufficient.

3. JURY (§ 131) — VOIR DIRE EXAMINATION — QUESTIONS.

On the voir dire examination of talesmen, called in a prosecution for carnally knowing a female under 14 years of age, where a juror, answering a question of the prosecuting attorney, whether he then had an opinion as to the

age of prosecutrix, stated that he had, without stating what it was, but that he would be governed by the evidence, and the juror was retained on the panel of 40, but did not serve on the trial jury, it not appearing but that the state peremptorily challenged him, an exception to the question of the prosecuting attorney must be overruled, the question being proper.

4. CRIMINAL LAW (§ 1035) — APPEAL — REVIEW.

The competency of a juror who had an opinion in a criminal case cannot be reviewed in the absence of a challenge for cause.

5. CRIMINAL LAW (§ 1088) — APPEAL — RECORD — QUESTIONS PRESENTED.

Objections to the admission of a letter cannot be reviewed where it does not appear in the record on appeal.

6. CRIMINAL LAW (§ 1088) — APPEAL — RECORD — CONTENTS.

Objections to the admission of a letter will be overruled on appeal unless the record affirmatively shows that it was read to the jury.

7. CRIMINAL LAW (§ 1088) — APPEAL — RECORD — CONTENTS.

Complaints on the failure to give special instructions will not be reviewed where the record shows no requests.

8. CRIMINAL LAW (§ 784) — TRIAL — INSTRUCTIONS.

Where there was direct evidence in support of all the allegations of an information, an instruction on circumstantial evidence was unnecessary.

9. CRIMINAL LAW (§ 814) — TRIAL — INSTRUCTIONS.

Where there was evidence that the city marshal for four days searched for accused and arrested him in another county, an instruction on flight was justified.

10. CRIMINAL LAW (§ 404) — EVIDENCE — AGE OF INFANT WITNESS.

The appearance of the prosecuting witness in a rape case, who was before the jury, is evidence as to her age.

Appeal from Circuit Court, Jasper County; Henry L. Bright, Judge.

Ben Davis was convicted of rape, and he appeals. Affirmed.

Exhibit A referred to in the opinion was a letter or memorandum, sworn to contain a record of the date of the birth of prosecutrix.

E. W. Major, Atty. Gen., and Jno. M. Dawson, Asst. Atty. Gen. (Alex Z. Patterson, of counsel), for the State.

BLAIR, C.

The information in this case charges (formal parts omitted) that appellant and another "at the county of Jasper and state of Missouri, in and upon one Hattie Wyatt, then and there being a female child under the age of fourteen years, unlawfully, violently and feloniously did make an assault, and her, the said Hattie Wyatt, then and there, unlawfully, forcibly and against her will, feloniously did ravish and carnally know." A severance was granted, and the state, being thereto required on motion of appellant, elected to proceed against appellant, for carnally knowing a female child under the age of 14 years. The jury returned the following verdict: "We, the jury, find the defendant, Ben Davis, guilty of rape as charged in the information, and we find that at the time of the commission of said offense, the witness, Hattie Wyatt, was under the age of fourteen years, and we assess the punishment of the defendant, Ben Davis at imprisonment in the penitentiary for a term of five (5) years. E. A. Bourne, Foreman."

We will not besmirch our reports by spreading upon them the details of the occurrence which resulted in appellant's conviction. It will suffice to say that, besides the direct testimony of the prosecutrix and evidence of admissions by appellant, there was testimony of eyewitnesses as to the fact of the intercourse charged, and that, though the evidence as to the age of the prosecutrix was conflicting, it was sufficient, if believed, to support the finding that she was under 14 when the offense was committed.

1. The validity of the information was not questioned before verdict, but in the motion in arrest it is alleged that it is bad by reason of duplicity. On appellant's motion the state elected to proceed on the theory that prosecutrix was under 14 years of age. On this theory the case was tried and the verdict expressly finds that fact. While the safer practice is to follow approved forms, and, in case it is desired to charge both offenses under section 4471, to employ separate counts for that purpose, the information is certainly sufficient after verdict under the circumstances disclosed by this record.

Even could it be said that the election which he compelled did not secure to him all to which he was...