State v. Donell

• Decision Date: 04 June 1929
• Docket Number: No. 29471.,29471.
• Citation: 18 S.W.2d 53
• Parties: STATE v. DONELL
• Court: Missouri Supreme Court

18 S.W.2d 53

STATE v. DONELL

No. 29471.

Supreme Court of Missouri, Division No. 2.

June 4, 1929.

Appeal from Circuit Court, Boone County; David H. Harris, Judge.

Elmer Donell was convicted of assault with intent to ravish, and he appeals. Reversed and remanded.

A. R. Troxell, of Columbia, for appellant.

Stratton Shartel, Atty. Gen., and A. B. Lovan, Asst. Atty. Gen., for the State.

COOLEY, C.

Appellant was tried and convicted in the circuit court of Boone county upon an information charging him with the crime of assault with intent forcibly to ravish and carnally know one Goldie Heibel, against her will, and his punishment was fixed by the jury at five years' imprisonment in the penitentiary. From the sentence and judgment upon the verdict he appeals.

Appellant's first assignment of error is that the court should have sustained his motion to quash the information. This motion was filed after the trial jury had been selected and sworn to try the case. It alleges as grounds for quashing that the information is not verified by the prosecuting attorney, does not state that it is upon the oath of that officer, and that the affidavit upon which the preliminary examination was held charges an assault upon Goldie Huble, while the information names Goldie Heibel as the person assaulted.

When defendant filed his motion to quash, the jury was withdrawn from the courtroom, and the court heard evidence on the question of verification of the information, which was ample to prove, and from which the court found that, when the prosecuting attorney filed the instrument with the clerk, the information itself and the prosecuting attorney's oath thereto were both signed by him, and that he did in fact at that time swear to the information before the clerk, but that the clerk, through oversight, had neglected to sign his jurat certifying the oath and to affix the seal of his office. Thereupon the court permitted the clerk to sign his jurat and affix the seal, and overruled defendant's motion. In this there was no error. Failure to verify an information does not render it fatally defective. It is a statutory requirement, but may be waived by defendant, and is waived unless the omission is called to the court's attention by motion to quash. State v. Brown, 181 Mo. 192, loc. cit. 223 et seq., 79 S. W. 1111; State v. Speyer, 194 Mo. 459, 91 S. W. 1075; State v. Baumann (Mo. Sup.) 1 S.W.(2d) 153. Defendant did not file his motion to quash until after the jury was sworn. The court thereupon properly permitted a showing to be made that the information had in fact been sworn to, and permitted that fact to be properly certified. Even had it not been actually sworn to previously, it might have been amended in that respect at the trial, absent as here any showing that defendant was prejudiced thereby. Sections 3908a, 3908b, Laws 1925, p. 195; State v. Baumann, supra, in which such amendment, after the jury had been sworn, was held proper.

In State v. Trout (Mo. App.) 274 S. W. 1097, relied upon by appellant, the defendant, after the jury was sworn, filed a motion to quash because the information was not verified. The court overruled the motion, and the trial proceeded without verification or amendment of the information. The decision is not in point.

The body of the information omits, apparently by oversight, to state that the prosecutor makes it upon his official oath. It reads thus: "Comes now George A. Starrett, Prosecuting Attorney within and for the County of Boone and State of Missouri, and upon his official ____ informs the Court," etc. The prosecuting attorney's official acts are necessarily done under his official oath. It is not necessary that that fact be specifically stated in the information. The statutory verification is all that is required. State v. Lee, 303 Mo. 246, 259 S. W. 798.

No evidence was offered in proof of appellant's contention in his motion to quash and motion for new trial that the affidavit filed before the justice of the peace named Goldie Huble as the person assaulted. There is nothing in the record, except these unproved assertions in said motions to indicate that such was the case, and these allegations in the motions do not prove themselves. The motion to quash the information was properly overruled.

A more serious question arises on appellant's assignment that the court erred in permitting the prosecuting attorney to refer, in his opening statement to the jury, to other acts of misconduct on the night of the alleged assault, presumably committed by defendant, and to introduce evidence relative thereto; and on the further assignment that the evidence is insufficient to identify appellant as the one who committed the assault, and that therefore a verdict in his favor should have been directed. He also questions the sufficiency of the evidence to prove that the assault charged was actually committed. On the last-mentioned point it is sufficient to say that the evidence was ample to justify submission of the case to the jury, so far as that issue is concerned.

The evidence necessary to consider in passing upon the two assignments of error above mentioned, i. e., the questions of identity and the other acts of misconduct referred to, was in substance and effect as follows:

Mrs. Goldie Heibel, at the time of the alleged assault, was a widow living at 324 Ninth street, Columbia, Mo. At the time a Mr. and Mrs. Dryden were temporarily staying in the same house and were there that night. To reach Mrs. Heibel's bedroom from the outside, one entered from a porch on the north side of the house, passed through a living room and thence into her bedroom. The Drydens occupied a bedroom separated from Mrs. Heibel's by a narrow hallway. Defendant had been in the house once, several years before, when he was working for a transfer company and had been sent there to get some baggage, which he took out of the same bedroom occupied on the night in question by prosecutrix, and carried out through the living room and the north door, the same course she says her assailant took in leaving on the night of the assault.

The assault occurred in the early morning of Sunday, April 29, 1928. Prosecutrix fixes the time at about 2:15 a. m. She and Mr. and Mrs. Dryden had all retired at about 11 or 11:30 o'clock Saturday night. She had been sleeping soundly and was awakened by some one jumping on the bed and grasping her by the throat and mouth. She described the struggle she had with the man, lasting, she thought, five or six minutes, and how she pushed and beat him about the head and shoulders trying to free herself. She could not cry out for some time because he had one hand on her throat and the other over her mouth. It was dark in the room, being at night and with the window blinds pulled down, and she could not see her assailant and is not aided in her identification by the sense of sight. Finally the man succeeded in getting his body under the bedcovers and on top of prosecutrix. In her struggles to free herself, her nightgown was pushed up above her knees, and with her legs or thighs she felt the clothing on his legs and perhaps lower body and from that knew he had on a coverall or unionall suit, not overalls. With her hands, while trying to push and fight him off, she felt his head and shoulders. His clothes on his shoulders and back were also heavy overall material, heavy denim material, with big seams and something like seaming or lettering or scroll work or stitching of some kind. He had on his head a slick stocking cap with a button or knot of some kind at the top and a seam running lengthwise from this button or knot down to the edge. It fitted so tightly that she could not get it off and she did not feel his hair or his face and could not tell whether he was white or black or whether he had a mustache or not. She did not testify as to his size or general build. Once she heard his voice. After the struggle had continued for some time and the man had gotten his body under the covers and she was struggling to get her knees up, she thought she must have kicked him in the stomach and he loosened his grasp of her throat momentarily and she screamed or called out to Mr. Dryden. Thereupon the man said, "Shut up," once or twice. He spoke low, "mumbled," had his head down under her shoulder and was keeping his face away from her all the time. Asked how long she had known defendant and whether she had ever heard him talk or speak, she said she had known him 10 or 12 years and had heard him hollow several times, but had never talked to him. She was then asked over defendant's objection, whether the voice of the man who assaulted her that night sounded like that of the defendant, to which she replied: "The voice was so muffled and he was fighting to keep his face away from me and to keep my hands off of his face that I could not say, hardly, as to that." But when pressed by a repetition of the question, leading in form, she said yes.

Prosecutrix' scream awakened Mr. and Mrs. Dryden, who at once got up. They made some noise which prosecutrix heard. Her assailant fled, going out through the living room and the north door. Mr. Dryden got a glimpse of the man going out the front door. As Dryden reached the door the man was disappearing around a street corner. All Dryden could tell about his appearance was that it looked like he had on a one-piece suit; could not tell whether he was white or black. Mrs. Dryden did not see him.

Officers were called, informed of what had occurred and given such description as Mrs. Heibel could give of her assailant, and some two hours later they arrested the defendant. He was wearing coveralls, with heavy seams on the shoulder and lettering on the back, and a tight fitting skullcap, made out of a stocking, which had a knot at the top and a seam down the side, the same cap produced at the trial. He wore no other head covering.

Another witness, one Clarkson, testified that he saw and...