State v. Devorss

• Decision Date: 08 June 1909
• Citation: 221 Mo. 469,120 S.W. 75
• Parties: STATE v. DEVORSS.
• Court: Missouri Supreme Court

120 S.W. 75

221 Mo. 469

STATE v. DEVORSS.

Supreme Court of Missouri, Division No. 2.

June 8, 1909.

1. CRIMINAL LAW (§ 1144) — APPEAL — REVIEW—PRESUMPTIONS—MOTION FOR CONTINUANCE.

Where it does not appear on appeal on what grounds a motion for a continuance on account of an absent witness was overruled, it must be presumed that the ruling was correct, and for good and sufficient reasons.

2. CRIMINAL LAW (§ 1144) — APPEAL — REVIEW — BURDEN OF SHOWING ERROR — MOTION FOR CONTINUANCE.

The burden is on appellant, complaining of the action of the court in overruling a motion for continuance on account of an absent witness, to prove that the ruling was incorrect.

3. CRIMINAL LAW (§ 1151)—APPEAL—DISCRETION OF COURT—CONTINUANCE—ABSENT WITNESS.

In passing on a motion for a continuance on account of the absence of a witness, the discretion of the court will not be interfered with unless it be made to appear that such discretion has been unwisely exercised.

4. CRIMINAL LAW (§ 594)—CONTINUANCE—ABSENT WITNESS—ERROR NOT SHOWN IN OVERRULING MOTION.

On a motion for a continuance on account of an absent witness, which was overruled, it appeared that the case had been continued once on account of the illness of defendant's attorneys, and again on account of the illness of the same witness. Besides, according to the affidavit therefor, the facts to which the witness would testify were merely to contradict the prosecutrix, though no foundation for her impeachment had been laid, and the statement in the affidavit as to diligence was too general and insufficient. Held, that error as to the ruling was not shown.

5. WITNESSES (§ 388) — IMPEACHMENT OF PROSECUTRIX IN RAPE CASE—NECESSITY OF LAYING FOUNDATION THEREFOR.

In order that the prosecutrix may not be taken by surprise and be unprepared to meet the issue, in a prosecution for rape, a foundation should be laid for her impeachment, calling her attention to the time and place when and where she made alleged contradictory statements, as she is not a party and has no pecuniary or personal interest in the case, and, like any other witness, can only be impeached by first laying a foundation therefor.

6. CRIMINAL LAW (§ 603)—CONTINUANCE—ABSENT WITNESS—INSUFFICIENCY OF AFFIDAVIT—STATEMENT AS TO DILIGENCE.

A statement, in an affidavit for a continuance on account of an absent witness, that defendant had "used all the diligence in his power in endeavoring to locate said absent witness," is too general and insufficient.

7. RAPE (§ 40)—CHILD UNDER AGE OF CONSENT—EVIDENCE OF RAPE BY ANOTHER.

In a prosecution for rape of a child under the age of consent, defendant's act was a crime under the statute (Rev. St. 1899, § 1837 [Ann. St. 1906, p. 1271]), whether or not she had been similarly treated by others, and evidence that she had been raped by another was properly excluded as utterly immaterial.

8. RAPE (§ 51)—CHILD UNDER AGE OF CONSENT — EVIDENCE OF PENETRATION — SUFFICIENCY.

Under Rev. St. 1899, § 2633 (Ann. St. 1906, p. 1565), providing that "proof of actual penetration into the body shall be sufficient to sustain an indictment for rape," it was not necessary to show that defendant forcibly ravished prosecutrix if she was under the age of consent; but, if he had sexual intercourse with her, as her testimony showed, that was sufficient proof of penetration.

9. RAPE (§ 51)—EVIDENCE OF PENETRATION —SHOWING BY FACTS AND CIRCUMSTANCES.

Penetration can be shown by facts and circumstances, if sufficient.

10. CRIMINAL LAW (§ 741)—TRIAL—WEIGHT OF TESTIMONY—QUESTION FOR JURY.

The weight of testimony is for the jury.

11. RAPE (§ 51)—EVIDENCE OF PENETRATION —SUFFICIENCY.

In a prosecution for rape of child under the age of consent, evidence to prove penetration held sufficient.

12. CRIMINAL LAW (§ 829)—INSTRUCTIONS—REFUSAL OF REQUEST — INSTRUCTION ALREADY GIVEN.

No error can be predicated on the refusal of an instruction covering the same ground as one already given.

13. CRIMINAL LAW (§ 747) — CONFLICTING EVIDENCE—QUESTION FOR JURY.

Where the evidence is conflicting, its weight is for the jury.

14. CRIMINAL LAW (§ 1160)—APPEAL—REVIEW—QUESTIONS OF FACT.

A verdict on conflicting evidence, having been approved by the trial court, who heard the witnesses testify, and doubtless knew a number of the jury, will not be disturbed on appeal in passing on an instruction in the nature of a demurrer to the evidence.

Appeal from Circuit Court, Holt County; Wm. C. Ellison, Judge.

Russell Devorss was convicted of carnally knowing a female child under the age of 14, and he appeals. Affirmed.

John W. Stokes and T. C. Dungan, for appellant. Elliott W. Major, Atty. Gen., and Jas. T. Blair, Asst. Atty. Gen., for the State.

BURGESS, J.

Under an information filed by the prosecuting attorney of Holt county, charging the defendant with the crime of carnally knowing one Arminda Vendever, a female child under the age of 14 years, he was, at the April term, 1908, of the circuit court of said county, convicted of said offense, and his punishment assessed by the jury at five years in the penitentiary. Motions for a new trial and in arrest of judgment were duly filed by the defendant, and overruled by the court. It having been admitted at the trial by counsel for the state that the defendant was a minor, under 16 years of age, at the time of the commission of the alleged offense, the court ordered him committed to the Missouri Training School for Boys for a period of five years. The defendant appealed.

The evidence for the state tended to prove that the prosecuting witness, at the time of the commission of the offense charged, was but 13 years of age. She testified that on her way home from school in October, 1906, she was accosted on the public road by defendant, who emerged from some bushes on the roadside, that he made an indecent proposal to her, and then seized and threw her down, and had intercourse with her. She did not tell of her misfortune until the following May, at which time, according to her mother's testimony, she "began to show." Defendant testified in his own behalf that he was 15 years of age on the 21st day of August preceding the trial, in April, 1908. He denied having had sexual intercourse with the girl at any time or place.

The first point presented for our consideration by this appeal relates to the action of the court in overruling defendant's motion for a continuance on account of the absence of a witness, one Elzey Baker, whose testimony was alleged to be material. Defendant insists that the court erred in overruling said motion. It does not appear upon what ground or grounds the motion was overruled, and the presumption must therefore be indulged that the ruling was correct, and for good and sufficient reasons, and the burden is upon defendant to prove the contrary. In passing upon a motion of this character, the court has a large discretion, the exercise of which will not be interfered with unless it be made to appear that such discretion has been unwisely exercised. State v. Hesterly, 182 Mo. 16, 81 S. W. 624, 103 Am. St. Rep. 634; State v. Dettmer, 124 Mo. 426, 27 S. W. 1117; State v. Banks, 118 Mo. 117, 23 S. W. 1079. The case has been continued once on account...