State v. Drope

• Decision Date: 11 January 1971
• Docket Number: No. 2,No. 55489,55489,2
• Citation: 462 S.W.2d 677
• Parties: STATE of Missouri, Respondent, v. James Edward DROPE, Appellant
• Court: Missouri Supreme Court

Page 677

462 S.W.2d 677

STATE of Missouri, Respondent, v. James Edward DROPE, Appellant.

No. 55489.

Supreme Court of Missouri, Division No. 2.

Jan. 11, 1971.

Motion for Rehearing or to Transfer to Court En Banc Denied

Feb. 8, 1971.

John C. Danforth, Atty. Gen., Thomas H. Stahl, Asst. Atty. Gen., Jefferson City, for respondent.

Lester Waston, Richmond Heights, for appellant.

STOCKARD, Commissioner.

Charged as a second offender, defendant was found guilty by a jury of rape. The court assessed the punishment at life imprisonment.

The evidence presented by the State permitted a finding by the jury that on January 17, 1969, defendant and four other men, cooperating together, tied defendant's wife to bed, and while defendant held a gun at her head, each had sexual intercourse with her against her will and with force and violence to her person.

Defendant first contends that his motion for a verdict of acquittal should have been sustained because 'the State failed to produce sufficient evidence to sustain the indictment in that defendant was not charged with aiding and abetting others in the commission of the crime of rape, and he himself, could not be charged with raping his own wife.'

The statutory definition of rape, § 559.260, RSMo 1969, V.A.M.S., does not by express language exclude the accused's wife as a person upon whom the crime may be committed. However, for the purposes of this opinion we shall assume that the statute incorporates the common law rule that a husband cannot be guilty of rape based upon his forceful intercourse against the will of his wife. See 84 A.L.R.2d at p. 1019.

Defendant was charged as a principal in that he and others 'did unlawfully and feloniously make an assault' upon his wife and 'did then and there unlawfully, feloniously and forcibly rape, ravish and carnally know (her) against her will.' It is provided in § 556.170, RSMo 1969, V.A.M.R., that a principal in the second degree in the commission of any felony 'may be charged, tried, convicted and punished in the same manner, as the principal in the first degree.' One who is present at the place of the crime and aids and abets the perpetrator thereof is a principal in the second degree. 22 C.J.S. Criminal Law § 85; 21 Am.Jur.2d Criminal Law, § 121. As such, he may be charged and tried as a principal in the first degree, § 556.170, supra; State v. Murray, Mo., 455 S.W.2d 296, 298; State v. Sheard, Mo., 276 S.W.2d 191, without setting out in the charge the facts by which he aided and abetted, 42 C.J.S. Indictments and Informations § 147, and without alleging a conspiracy. State v. Reed, Mo., 453 S.W.2d 946. The charge of defendant as a principal was authorized.

Defendant argues, however, that to charge him as a principal results in uncertainty as to the charged offense, and that one reading the statute pertaining to rape would not know that the conduct of defendant relied on by the State would constitute a violation of that statute. This implies a reliance on § 18(a), Art. I, Constitution of Missouri, V.A.M.S. wherein it is provided that an accused has the right 'to demand the nature and cause of the accusation.' In State v. Spica, Mo., 389 S.W.2d 35, a similar contention was made when the defendant, being an accessory before the fact, was charged as a principal pursuant to § 556.170, supra. It was held that such a charge does not infringe the above constitutional provision. The same is true when the basis for the charge as a principal pursuant to the statute was conduct which resulted in the accused being a principal in the second degree.

Defendant argues that in no event could he be found guilty of rape of his wife, even though the basis of the charge was that the aided and abetted another in the commission of the offense. One nor the husband of the victim can be found guilty of rape on the basis of aiding and abetting even though he does not engage in the act of sexual intercourse. State v. Sheard, supra. No Missouri case is cited to us, and we have found none, holding that as an aider and abettor a husband may be found guilty of the rape of his wife. However, the issue has been ruled in other states.

In an annotation entitled 'Criminal responsibility of one cooperating in offense which he is incapable to committing personally,' 131 A.L.R. 1322, rape cases are annotated in which the conviction of the husband of rape for aiding and abetting another was held proper. In another annotation at 84 A.L.R.2d 1017, entitled 'Criminal responsibility of husband for rape, or assault to commit rape, on wife,' the general rule is stated that 'While a husband may, without criminal liability for rape, enforce sexual connection for himself upon his wife despite her actual denial of his right, he may not enforce sexual intercourse upon her through the instrumentality of another man.' Cases are then cited in which it is held that a husband who does so may be charged and found guilty of the crime of rape. Cases so holding include the following: People v. Chapman, 62 Mich. 280, 28 N.W. 896, 4 Am.St.Rep. 857; In re Kantrowitz, 24 Cal.App. 203, 140 P. 1078; Kitchen v. State, 101 Tex.Cr.R. 439, 276 S.W. 252; Bohanon v. State, Okl.Cr., 289 P.2d 400; Cody v. State, Okl.Cr., 361 P.2d 307, 84 A.L.R.2d 997; Elliott v. State, 190 Ga. 803, 10 S.E.2d 843; State v. Boyland, 24 Kan. 186; State v. Olsen, 138 Or. 666, 7 P.2d 792 (dicta); People v. Damen, 28 Ill.2d 464, 193 N.E.2d 25; State v. Digman, 121 W.Va. 499, 5 S.E.2d 113; State v. Blackwell, 241 Or. 528, 407 P.2d 617. We have not found any case disapproving the above general rule.

We conclude that defendant was properly charged, and that under the facts of this case he was properly found guilty of rape even though the victim was his wife.

Defendant next contends that the 'verdict was against the weight of the evidence.' Our brief statement of the facts, and the ruling on defendant's first point, demonstrates that a submissible case was made. The determination of the credibility of the witnesses is for the jury, and an appellate court does not weigh the evidence. State v. Dowe, Mo., 432 S.W.2d 272. This point presents no issue for appellate review.

Defendant's third and fifth points are that the court erred in proceeding with the trial when he was absent, and that there was 'no evidence upon the record' that he voluntarily absented himself from the trial.

The trial started on June 23, 1969. On June 29, after the testimony of four witnesses had been taken, the court recessed the proceedings. Defendant was free on bond, and the following morning he did not appear in court. The record shows that the court stated to the jury that 'We were delayed through no fault of either the Court or the attorneys,' and that defendant's counsel then moved for a mis-trial 'in view of the fact that the defendant * * * shot himself this morning.' The court then stated that it had 'already decided that the matter would proceed for trial,' thereby implying that the matter had previously been discussed, apparently in chambers or at least off the record. When defense counsel stated that it would be difficult 'to go to trial without a client,' the court stated: 'That is the difficulty * * * that your client brought about, not you, not the court. He was no bond and his responsibility (is) to be here. So the Court will proceed with the case.' Four additional witnesses were then heard. In addition, the hearing was held to prove the prior conviction. During this testimony in the absence of defendant, his counsel was present and participated in the trial by entering objections and by cross-examination.

In defendant's motion for new trial, error was assigned in proceeding with the trial while he was absent. A hearing was held in which defendant testified that on the morning of June 25 he had gone to his brother's house to change clothes, and that he remembered nothing concerning the circumstances of being shot except that he felt a burning pain in his stomach and later woke up in the hospital. He denied making any statements that he had shot himself to avoid attending trial. The police officer who investigated the matter testified that at the hospital he talked to defendant who told him, in the words of the officer, that 'he was supposed to go to court for rape, and he didn't do it; he (would) rather be dead than go to trial something he didn't do. So he got his rifle out of his basement and went to the garage and shot himself.' In ruling on the motion for new trial, the court found that defendant intentionally shot himself to avoid attending the trial.

We disagree with defendant's contention that there is 'no evidence upon the record' that he voluntarily absented himself. The court made such a determination before proceeding with the trial, although the basis for that determination is not fully disclosed. However, when defendant is free on bond, and he does not appear at the appointed time, it is presumed that the absence is voluntary until established otherwise. People v. Steenbergen, 31 Ill.2d 615, 203 N.E.2d 404, certiorari, denied 382 U.S. 853, 86 S.Ct. 104, 15 L.Ed.2d 92; State v. Cumbo, 96 Ariz. 385, 396 P.2d 11; Cox v. Hand, 185 Kan. 780, 347 P.2d 265, certiorari denied 363 U.S. 822, 80 S.Ct. 1265, 4 L.Ed.2d 1520. In any event, the circumstances were presented in full at the hearing on the motion for new trial, and the trial court affirmatively found that defendant did voluntarily absent himself. We find no reason to disagee with the evaluation by the trial court of the testimony on this issue, and we give due deference to its findings and conclusion. We shall, therefore, rule this issue on the basis that, as the trial court found, defendant voluntarily and intentionally inflicted a wound on himself with the intent to make his presence at the trial impossible.

Art. I, 18(a), Constitution of Missouri, V.A.M.S., provides that 'the accused shall have the right to appear and defend, in person and by counsel,' and ...