State v. Durham

• Decision Date: 10 July 1967
• Docket Number: No. 51653,No. 2,51653,2
• Citation: 418 S.W.2d 23
• Parties: STATE of Missouri, Respondent, v. John Hillary DURHAM, Appellant
• Court: Missouri Supreme Court

Page 23

418 S.W.2d 23

STATE of Missouri, Respondent, v. John Hillary DURHAM, Appellant.

No. 51653.

Supreme Court of Missouri, Division No. 2.

July 10, 1967.

Motion for Rehearing or for Transfer to Court en Banc Denied

Sept. 11, 1967.

Norman H. Anderson, Atty. Gen., Jefferson City, Timothy D. O'Leary, Sp. Asst. Atty. Gen., Kansas City, for respondent.

Joseph Langworthy, Pacific, for appellant.

DONNELLY, Judge.

Appellant, John Hillary Durham, was convicted of statutory rape under § 559.260, RSMo 1959, V.A.M.S., by a jury in the Circuit Court of the City of St. Louis, Missouri, and his punishment under the provisions of the Habitual Criminal Act, § 556.280, RSMo 1959, V.A.M.S., was assessed at imprisonment for a term of thirty-five years. Following rendition of judgment and imposition of sentence as appeal was perfected to this Court.

Appellant does not question the sufficiency of the evidence. However, a brief summary is in order. Prosecutrix is Flora Jean Young, a female child, who was eleven years of age when the incident in question occurred. Appellant is her stepfather, husband of her mother, Vera Durham. Prosecutrix was living with her grandparents (Vera Durham's parents) at 936 Laurel in the City of St. Louis. Her home was about one block from the home of appellant and Vera Durham. At noon on December 24, 1963, she went to their home to take care of their children. About 8:00 p.m. that evening appellant left the home and returned about 10:45 p.m. smelling as if he had been drinking. Prosecutrix asked appellant to take her home so she could go to church. Prosecutrix testified that after she and appellant got to the bottom of the stairs outside the house, appellant put a knife to her neck, threatened her, took her to the basement, raped her and committed an act of sodomy. She then ran home, reported the incident to her grandmother, and was taken to Homer G. Phillips Hospital where she was examined by a doctor. There is ample medical evidence in the record to corroborate the attack. Appellant and his wife, Vera Durham, testified in his behalf. Appellant denied he raped prosecutrix. The evidence is sufficient to sustain the conviction.

By stipulation, seven prior convictions of appellant were admitted into evidence. Appellant was granted a pardon for these offenses by the Governor of Missouri on October 8, 1963. Appellant contends that he was erroneously tried and sentenced under the Habitual Criminal Act, § 556.280, RSMo 1959, V.A.M.S. He asserts that he was thereby deprived of his right to trial by jury. This contention has been raised many times in this Court and is without merit. State v. Wolfe, Mo.Sup., 343 S.W.2d 10, 12, 13; State v. Maxwell, Mo.Sup., 411 S.W.2d 237, 239, 240. He also asserts that because, after conviction of his prior offenses, he was pardoned by the Governor of Missouri, he is no longer subject to trial and punishment under the Habitual Criminal Act. He contends that his trial and punishment under the Habitual Criminal Act is in violation of Art. II, § 1, and Art. IV, § 7, Const. of Mo.1945, V.A.M.S Art. II, § 1, Const. of Mo.1945, divides the powers of government 'into three distinct departments--the legislative, (the) executive and judicial--* * *.' Art. IV, § 7, Const. of Mo.1945, gives the Governor power to grant 'pardons, after convictions, for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper, * * *.'

Appellant characterizes application of the Habitual Criminal Act to him in this case a 'legislative and judicial encroachment upon the executive prerogative by diminishing the effect of the pardon.' We do not agree. The Habitual Criminal Act does not affect the punishment the law inflicts for the prior crimes committed. It assesses additional punishment for the subsequent commission of a crime. It seeks to deter subsequent crimes by the same offender. The Governor may relieve a defendant from punishment assessed for the commission of a crime. However, the Governor's power to pardon for this offense is not involved or encroached upon by the assessment of increased punishment resulting from the commission of a subsequent offense. State ex rel. Stewart v. Blair, 356 Mo. 790, 203 S.W.2d 716; State v. Asher Mo.Sup., 246 S.W. 911. Appellant's contention is without merit.

Appellant next questions rulings of the trial court in connection with admissibility of evidence and cross-examination of witnesses. He first complains the trial court erred in permitting witnesses Dr. Morris Moore, Ruth McKnight, Paul London, Gerald Wheatley, and Ernest Troop to testify for the State because their names were endorsed on the indictment by leave of court before, not after, notice to appellant. See S.Ct. Rule 24.17, V.A.M.R.; § 545.070, RSMo 1959, V.A.M.S. The names of Dr. Morris Moore, Ruth McKnight, Gerald Wheatley and Ernest Troop were endorsed on the indictment on May 12, 1964. Trial commenced on May 15, 1964, and a mistrial was declared. The name of Paul London was endorsed on the indictment on May 26, 1964. The trial commenced again on June 16, 1964, and a mistrial was declared. Trial commenced again on November 17, 1964, and a mistrial was declared. Finally, the trial from which this appeal was taken commenced on January 4, 1965, and a verdict was returned on January 8, 1965. Appellant was given adequate notice of the persons the State proposed to call as witnesses against him. This contention is without merit.

Appellant complains of testimony elicited from the prosecutrix concerning an inspection of her body evidencing the commission of acts of sodomy by appellant at the time of the alleged rape. We need not decide whether this evidence, relating to another crime, comes within the res gestae exception. See State v. Taylor, 320 Mo. 417, 8 S.W.2d 29. The trial court denied a request for mistrial but ordered the evidence stricken and instructed the jury to disregard it. Appellant also alleges the trial court erroneously permitted the jury to view an evidence bag on which the words 'and sodomy' were written. It was the considered opinion of the trial court 'that the jurors would not have been able to read the writing on the bag.' We find no error prejudicial to appellant in this regard.

Appellant contends the trial court erred in refusing to declare a mistrial in connection with certain testimony elicited from Dr. Mitchell, who examined the prosecutrix at the hospital. That portion of the testimony complained of, to which objection was made, is as follows: 'Q Would you tell me, in your own words, what the results of the examination were, and how you conducted it? A This was an eleven-year-old girl that was brought to the hospital with history of rape. MR. LANGWORTHY: I am going to object to that, and ask for a mistrial. THE COURT: Overruled. Ordered stricken; jury instructed to disregard it. Overruled on the mistrial. THE WITNESS: This was history given to myself. MR. LANGWORTHY: I object to that, and ask for a mistrial. The witness volunteered that without instruction from anybody. THE COURT: Voluntary statement ordered stricken. Jury instructed to disregard it. Overruled as to mistrial.' The trial court instructed the jury to disregard the evidence and ordered it stricken. The trial court did not abuse its discretion in refusing to declare a mistrial. State v. Walker, Mo.Sup., 46 S.W.2d 569.

Appellant contends the trial court erred in refusing to allow appellant to show, on cross-examination of prosecutrix, that appellant denied at the police station that he raped her. This evidence was self-serving and incompetent unless part of the res gestae. State v. Wright, 352 Mo. 66, 74, 175 S.W.2d 866, 871. In State v. Stallings, 334 Mo. 1, 64 S.W.2d 643, cited by appellant, it is pointed out that appellant's statement, in order to be considered part of the res gestae, must be 'the apparently spontaneous result of the occurrence operating upon the perceptive senses of the speaker,' and that 'the ultimate test is spontaneity and logical relation to the main event.' The element of spontaneity is absent here. There is nothing in the record to indicate that appellant was in such confused mental state as to be unable to think clearly when he allegedly made the statement at the police station nearly two hours after the commission of the crime. Appellant had time to deliberate. The statement in question was not part of the res gestae and the trial court did not err in excluding it. State v. Crouch, 339 Mo. 847, 855, 98 S.W.2d 550, 555; 22 A C.J.S. Criminal Law § 737.

Appellant contends the trial court erred in admitting evidence and permitting cross-examination relating to attempts of Vera Durham, wife of appellant, to commit suicide.

On cross-examination by appellant's counsel, Flora Jean Young testified as follows: 'Q I hand you what has been marked Defendant's Exhibit A. Is that note from you to your mother? A Yes. Q Did you write that to her? A Yes. Q Would you like to read it? Can you read it? A (Reading) Dear Sweetie Pie: I am sorry about the terrible things that I said John did to me Christmas Eve. They were not true. I didn't like the way he had been treating me. Love Flora Jean Young.' She later testified on cross-examination that her mother, Vera Durham, told her to write the note 'and if I didn't write it down she would kill herself.'

On redirect examination the following testimony was elicited from Flora Jean Young: 'Q Do you have any knowledge of the attempts of Vera Durham, your mother, to take her life at any time? MR. LANGWORTHY: I object to that. Beyond the issues in this case. THE COURT: Overruled. MR. LANGWORTHY: I object to it as being leading. THE COURT: Overruled. A Yes. Q And was she admitted to a hospital for that? MR. LANGWORTHY: I object to that for the same reason. THE COURT: She may answer. A When? Q Well, at any time prior to this particular case, that was in your knowledge? ...