State v. Drew
| Decision Date | 03 June 1919 |
| Docket Number | No. 21375.,21375. |
| Citation | 213 S.W. 106 |
| Parties | STATE v. DREW. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Cooper County; J. G. Slate, Judge.
Edgar Drew was convicted of statutory rape, and appeals. Reversed and remanded.
Charles W. Journey, of Boonville, for appellant.
Frank W. McAllister, Atty. Gen., and Thomas J. Cole, Sp. Asst. Atty. Gen., for, the State.
The appeal is from a judgment of the circuit court of Cooper county wherein the defendant was adjudged guilty of the crime of statutory rape. The girl in the case was one Minnie Williams. Both parties were colored. Minnie Williams was the daughter of Robert Williams, who was a farmer in Cooper county. He and his wife had three or four children, among them a boy of 16 and Minnie, whose age was a Matter of controversy, and two younger children. On the night of the 17th or 18th of October, 1917, the defendant passed the night at the house of Williams. In the morning the father, Robert Williams, went to work as usual, as did his wife, Ida Williams, the mother of Minnie. The other children were soon away from the house, with the exception of Minnie and her 6 year old sister. The defendant either remained after the others had left or returned within a short time, when the offense was committed with the consent of Minnie. Minnie said nothing about the matter until several months later, when her appearance attracted the attention of her father and mother, and on their questioning she stated that Edgar Drew was responsible for her condition.
The character of Minnie was severely attacked and the defendant's reputation for morality was proved to be bad. He had been twice married and divorced at the time of the alleged offense.
1. In order to make out a case against the defendant it was necessary to prove the girl was under the age of 15 years. Her mother swore that she was born June n, 1904, and said she got her information from the entry in the Bible. Her father testified that she was born on that date, and that he made the entry in the Bible a few days after her birth. When his testimony was offered a discussion arose among counsel regarding the entry. The entries of the births of several other children were in the book. It was claimed and conceded that the entry opposite the name of Minnie appeared to have been altered; that the figure 4 in 1904 had been written over something else. During the discussion the judge made this remark:
"It looks like if there was any change made it was done at the same time, because the ink and all would indicate that it was all the same age—I don't know."
Defendant objected and excepted to the action of the court in making this remark. There was other corroborative testimony as to the girl's age, but it seems likely that the most convincing evidence presented to the jury as to her age was the entry in the Bible. Here was a statement by the judge giving his opinion that there was no alteration in the entry after the time it was made, a question of fact for the consideration of the jury. It was wholly improper for the judge to thus comment upon the evidence and give his judgment as to its probative force. It would have been improper even if it had been incorporated in the written instruction. State v. Hyde, 234 Mo. 206, loc. cit. 255, 136 S. W. 316, Ann. Cas. 1912D, 191; State v. Potter, 125 Mo. App. loc. cit. 473, 102 S. W. 668; State v. Helton, 255 Mo. loc. cit. 182, 164 S. W. 457; State v. Jones, 197 S. W. loc. cit. 158.
The error was aggravated by the attitude of the court in cross-examining the defendant about his staying all night at the house of Williams and the order in which the different parties left the house in the morning. Also he cross-examined the witness Helen Smith, a colored girl, whose testimony reflected upon the character of Minnie Williams. The judge asked questions in the endeavor to show that Helen Smith was a chum and confidential friend of Minnie. These cross-examinations were such as the prosecutor might have made, and indicated a purpose to discredit the defendant and his witness.
Witnesses were put on the stand to impeach the character of the defendant. It was not shown that he had a bad reputation for veracity or honesty, but he did have for morality. One of the state's witnesses, on...
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