State v. Davis

• Decision Date: 13 October 1952
• Docket Number: No. 1,No. 42979,42979,1
• Citation: 251 S.W.2d 610
• Parties: STATE v. DAVIS
• Court: Missouri Supreme Court

Page 610

251 S.W.2d 610

STATE v. DAVIS.

No. 42979.

Supreme Court of Missouri, Division No. 1.

Oct. 13, 1952.

William R. Hirsch and Louis Gilden, St. Louis, for appellant.

J. E. Taylor, Atty. Gen., John S. Phillips, Asst. Atty. Gen., for respondent.

COIL, Commissioner.

A jury convicted Omega Davis of rape, found that he had theretofore been convicted of three prior felonies, and fixed his punishment at life imprisonment in the penitentiary. He has appelaed from the judgment and sentence entered on the verdict. We shall refer to appellant as defendant.

Five assignments of error are briefed: that the evidence was insufficient to sustain the verdict; that the court erred in failing to require the circuit attorney to proceed under the Criminal Sexual Psychopath Act; that the court erred in permitting improper use of matters in issue under the Habitual Criminal Act; that the court erred in permitting allegedly prejudicial argument to the jury, and in recalling the jury after it had retired and reading to it portions of the alleged improper argument made by the assistant circuit attorney.

On November 10, 1949, at about 11 p. m., prosecutrix, 47 years old, was seated directly under a lighted, unshaded, 100-watt electric bulb in a room of her basement apartment. Asleep in the room was her infant grandchild. She resided there with her husband who was then at a nearby tavern. At the front of the room were some windows at which the curtains were arranged so that light from a row of electric lights at a used car lot directly across the street shone into the apartment and made a good light when the 100-watt electric bulb was off. Prosecutrix looked up from the newspaper she was reading and saw a Negro man standing in the door. A handkerchief covered his face beneath his eyes.

This man, whom prosecutrix twice positively identified, shortly after his arrest on November 12, 1949 and at the trial, entered the room, jumped upon prosecutrix, pulled off the light above her, and forcibly ravished her. In her efforts to remove the assailant's hands from her throat she felt the index finger of his left hand and was able to discern that it was deformed. The handkerchief slipped from his face. She got a good look at his face. She identified defendant mainly by his eyes, his features, and his crooked finger. Immediately after the assailant left, prosecutrix went to the tavern and indicated in an incoherent way that something had happened. She then became unconscious. Her husband testified that her hair was then 'mussed up' and her clothes were wet.

A medical examination made of prosecutrix between 12 and 12:15 on November 11, 1949 (about an hour after the assault) disclosed bruises on the neck, submucosal hemorrhages at various points of the introitus, and possible 'intervaginal mucous'. The hemorrhages were, in the opinion of the testifying doctor, caused by a 'forcible sexual act' and the bruises about the neck appeared to have been inflicted about the same time as had the submucosal hemorrhages of the introitus.

No separate argument is included in defendant's brief in support of the contention that the evidence was insufficient. Defendant states only in his 'Points and Authorities' that the testimony was confused, uncorroborated, and uncertain, and refers to the 'vague identification' in connection with another point. Suffice to say the evidence was sufficient to sustain the conviction. True, defendant's counsel elicited on cross-examination of prosecutrix certain testimony which might have caused the jury to question her opportunity and ability to have observed defendant sufficiently to later identify him. For example, the facts that she did not know the color of various items of clothing worn by defendant, the color of his hair, that she constantly wore bifocal glasses which were knocked from her eyes shortly after the assault began, and that without glasses she could not read the fine print in a telephone book. None of this testimony, nor any other testimony in the record, destroyed the probative value of her positive identification of defendant. State v. Young, 345 Mo. 407, 411, 133 S.W.2d 404, 407. 'We may say at once that there is no merit in the various assignments in the motion for new trial charging in one way or another that the evidence was insufficient, and that the verdict was the result of passion and prejudice. While it is held that in a forcible rape case where the prosecutrix is a mature woman and the State's evidence is weak, there should be corroboration, State v. Thomas, 351 Mo. 804, 818 (6), 174 S.W.2d 337, 345(13); we do not regard the State's evidence here as weak. And if corroboration was necessary, it is abundant: the victim's complaint at the first opportunity; her physical appearance showing the use of force; her mental distress; the material evidence that she had lain on the ground where there was sand, there being also sand in the alley; and the testimony of the physician who examined her genital organs. State v. Scott, 172 Mo. 536, 541, 72 S.W. 897, 898.' State v. Marshall, 354 Mo. 312, 318, 189 S.W.2d 301, 304[3-5].

In 1946 defendant pleaded guilty on successive days to the crimes of rape and sodomy. He was separately sentenced in each case, the sentences running concurrently. He had been imprisoned in the penitentiary, and was duly discharged in July 1948. The record proper discloses, after an amended information had been filed in which convictions of three prior felonies, including the offenses of rape and sodomy, were alleged, an entry of June 23, 1950: 'This day comes the defendant, by his attorney, and files motion to proceed under the Act to provide for the detention and treatment of criminal sexual psychopaths.' The motion was heard and overruled. Later a defense motion for the appointment of a psychiatrist was sustained and a report of an examination made of defendant was filed November 20, 1950. On January 8, 1951, both parties announced ready for trial. Neither of the motions just referred to are set forth in the record proper nor in the transcript filed here.

Defendant states in his brief that the circuit attorney was informed by a reputable person of the facts as required by the Criminal Sexual Psychopath Act, sections 202.700-202.770, RSMo 1949, V.A.M.S., and that it was therefore mandatory that the circuit attorney file in the proper court a petition as provided in the Act and to proceed against defendant as a criminal sexual psychopath. Assuming without deciding that there was no discretion in the circuit attorney, the difficulty with defendant's contention is that there is nothing before us from which we may determine whether defendant properly took the necessary preliminary steps to bring himself within the provisions of the Act, or from which we may determine whether it was error to fail to proceed under the Act. This, for the reason that even assuming that the motion to proceed under the Act did contain the necessary allegations, such motion is not included in the transcript. Furthermore, the fact that the record proper shows that the motion to proceed under the Act was overruled, without more, indicates that it did not contain the necessary allegations. Upon the record before us, we must assume that the trial court acted properly. Defendant's statement in his motion for new trial that the necessary facts were given to the circuit attorney by a reputable person does not prove itself any more than does the statement to that effect in defendant's brief. State v. Skaggs, Mo.Sup., 248 S.W.2d 635, 637[5, 6].

Defendant's fifth assignment of error is: 'It was prejudicial error for the State to overemphasize the prior convictions for offenses growing out of the same transaction, for the Habitual Criminal Act (section 556.280 RSMo 1949, V.A.M.S.) is based upon recurrent offenses and not upon recurrent convictions for offenses arising out of the same transaction.' (Parenthetical insert ours.) Defendant's argument is that the state so overemphasized the prior convictions that the offense upon which defendant was being tried 'was pushed into the background and buried under the onslaught of prior convictions.' As we understand this contention, it is based upon the premise that the prior conviction of rape and the prior conviction of sodomy grew out of the same occurrence and that, therefore, it was prejudicial to permit the jury to know of these two prior offenses because it gave them the impression 'that defendant is a hardened criminal with a long record of recurrent offenses * * * when the facts show that said offenses grew out of one entire transaction.' There is nothing in the record proper or in the transcript to indicate that the prior offenses of rape and sodomy did or did not grow out of one 'entire transaction' other than a possible inference from the facts that the pleas of guilty to these charges were entered on successive days, April 2 and 3, 1946, and the sentences imposed ran concurrently. All that was read in evidence as to the prior offenses were the judgment entry in each case, the records of confinement in the respective institutions, and the records of discharges therefrom. None of these, of course, disclosed when or the circumstances under which the crimes were alleged to have been committed. Consequently, the premise upon which defendant's argument is based is unproved and we may not assume it. We, therefore, do not rule the specific contention here made. It would appear, however, that, inasmuch as rape and sodomy are separate offenses under the laws of this state, and made so by unrelated statutes, sections 559.260, 563.230 RSMo 1949, V.A.M.S., if the defendant felt that, by showing that two of the prior offenses involved arose out of one 'transaction' he might thereby correct some impression the jury might otherwise have as to his criminal record, he was at liberty to so show.

It is true that the jury panels were told on voir dire examination that def...