State v. Dusenberry

• Citation: 112 Mo. 277,20 S.W. 461
• Parties: STATE v. DUSENBERRY.
• Decision Date: 10 October 1892
• Court: United States State Supreme Court of Missouri

20 S.W. 461

112 Mo. 277

STATE v. DUSENBERRY.

Supreme Court of Missouri, Division No. 2.

October 10, 1892.

RAPE — CHANGE OF VENUE — CONTINUANCE — JURY — OPINION EVIDENCE — CONDUCT OF TRIAL.

1. An objection that the clerk of the circuit court of the county where defendant was indicted did not, on a change of venue, affix his official seal to his certificate to the transcript of the record, is too late when made after verdict.

2. Rev. St. 1889, § 4084, provides that, "if any offense be committed or discovered during the sitting of any court having jurisdiction thereof, after the grand jury attending such court shall be discharged, such court may in its discretion, by an order to be entered on its minutes, direct the sheriff to summon another grand jury." Held, that where the record shows that the circuit court of M. county convened October 22, 1888, and impaneled a grand jury, and on the 31st of the same month adjourned until the 10th of December following, without showing the discharge of the grand jury, but that on December 10th a special grand jury was impaneled by an order of the court, which returned an indictment against defendant, it will be presumed that the regular grand jury had been discharged.

3. Where an application for a continuance, made October 14, 1889, based on the illness of defendant's attorneys, was refused, but the trial was not begun until November 11, 1889, and the record shows that four attorneys appeared for defendant, an objection on account of such refusal will be overruled.

4. Where the affidavit in support of an application for a continuance, on the ground of the absence of witnesses, failed to aver that defendant believed the facts he expected to prove by the absent witnesses were true, it was fatally defective, and the application was properly overruled.

5. Where opportunity was given defendant to challenge for cause, and all the jurors composing the panel were qualified to sit, tested by the ordinary criteria laid down by the court, the jury was properly impaneled.

6. The fact that some of the men selected for the panel had heard the statements of counsel on defendant's last application for a continuance, which were of a character calculated to prejudice their minds against him and his defense, did not of itself disqualify them.

7. The opinions of witnesses on a trial for rape, as to the ability of defendant to have held prosecutrix in a certain saloon, which they described, were properly excluded from the jury, that being within the common knowledge of mankind, and therefore not the subject of expert testimony.

8. A conviction of rape may be had on the uncorroborated testimony of prosecutrix.

9. During a trial for rape, a bystander made a remark, in the presence of the jury, derogatory to defendant, and was promptly fined for contempt of court; and during the closing argument for the state the attorney was applauded, and the court ordered the sheriff, if he knew them, to arrest the offending parties, and the attorney speaking also denounced the applause as infamous; and the court instructed the jurors that they were not to allow prejudice to influence them, but were to arrive at their verdict solely by a consideration of the testimony before them. Held, that everything possible had been done by the court and counsel to neutralize the effect of the remarks and applause of bystanders.

10. Defendant interposed an objection to some remarks made by two of the counsel for the state in their arguments to the jury, and the court told one of them to keep within the record, and rebuked the other, who immediately admitted that he was wrong, and apologized to the court. Held, that there was nothing on the record before the appellate court for review.

11. Where, on his motion for a new trial, the defendant filed several affidavits showing the prejudice of some of the jurors, and the state filed counter affidavits negativing such prejudice, and the court passed upon the issue thus raised, its finding will not be disturbed, where it does not appear that the court abused its discretion.

12. An affidavit of a juror as to the manner of reaching a verdict will not be considered for the purpose of impeaching the verdict.

13. Leave to file an amended motion for a new trial after the expiration of the four days allowed by law for filing such motions, on the ground of improper interference of one of the state's attorneys in summoning talesmen to serve on the jury, was properly refused. State v. Brooks, 5 S. W. Rep. 257, 330, 92 Mo. 542, followed.

Appeal from circuit court, Audrain county; E. M. HUGHES, Judge.

R. L. Dusenberry was convicted of rape, and appeals. Affirmed.

The other facts appear in the following statement by THOMAS, J.:

The defendant appeals from a sentence by the circuit court of Audrain county to imprisonment in the penitentiary for a term of 35 years, for rape. As is usual in cases of this character, the principal witnesses were the prosecutrix and the defendant. The story told by the prosecutrix, Bettie Sira, is, in substance, as follows: Her home was in Tazewell county, Va. On the 2d day of November, 1888, she, being then a little over 16 years old, and still wearing short dresses, left home to visit some relatives living in Benton City, Audrain county, Mo. She arrived in St. Louis on the 4th, and took a train on the Wabash Railway on the evening of that day, going west. On presentation of her ticket, the conductor informed her that the train she was on did not stop at Benton City, and that she would have to get off at the next station, and take a train going east; that she could get off at Mexico or Montgomery City. The defendant approached her while on the train, inquired her name, where she was from, and where she was going. She told him, and then he told her he lived at Montgomery City, and would see her to the hotel where he boarded. Getting off the train at Montgomery City, the defendant took her into a room, and locked the door. She supposed it was an hotel, but, upon inquiry, she found she was in a saloon kept by defendant as bartender. He lit the lamp, but turned it down low. She begged him to take her to an hotel. She cried and hallooed, and he took hold of her, and told her if she wanted to get out alive she had better not make any noise, and put his hand over her mouth. By the exhibition of a knife and pistol, and by threats putting her in fear, he forced her to submit to sexual intercourse with him twice. He stripped her and himself of all their clothes except undergarments, and then forced her onto a quilt or blanket on the floor, where he had the intercourse with her. She struggled all she could, or all she dared to. He kept her in the saloon till about 5 o'clock in the morning, when he took her a part of the way, pointed out the hotel, and left her. Mr. Rombean, the keeper of the hotel, showed her a room. She did not sleep, however, and went to breakfast about 7 o'clock. When she finished breakfast she asked Mrs. Rombean to go to her room; that she wanted to talk to her. The girl went first, and in a short time Mrs. Rombean went to her room, followed by Mr. Rombean, and she then and there told what had occurred at the saloon. Just before she left the saloon defendant made her promise not to tell any one about the affair. She told him she could not remember his name, and he then wrote his name down, and gave it to her, and this was produced at the trial. Mr. Rombean testified that when she came to the hotel her eyes were very red, and her face looked like she had been crying, and she seemed nervous and excited. When he went to her room after breakfast she was crying and wringing her hands, and walking the floor. She told him what was the matter. Mrs. Rombean testified that she first saw the girl at the breakfast table, and she looked like she had been crying, and her face was swollen and puffed up, and she seemed nervous and broken down. When she reached her room, she heard her walking the floor, and she came out in the hall, and was crying, and, being asked, she told what was the matter. The witness examined the girl, and found her underclothing "all full of blood," there being a splotch on her chemise larger than her hand, caused by pure blood, and not menstruation. The girl's father testified that she was born October 9, 1872, and consequently was a little over 16 years old on November 4, 1888. She was corroborated as to her age by other witnesses. The prosecuting attorney was sent for, and he prepared the papers for a warrant for defendant that same day, Monday, November 5th. The girl went to Benton City, and about 10 days afterwards she was taken back to Montgomery City, where several doctors examined her, and found a laceration in the vagina which was then in the process of healing. The morning the girl first went to the hotel in Montgomery City was Monday, and on the next Saturday defendant was arrested in Kansas City upon a charge of ravishing her, and when arrested the sheriff testified that he asked him to let him go, and nobody would know it, and that he would do all he could for him. He also told the sheriff, so the sheriff testified, that he boarded the train at Montgomery City, on the opposite side from the depot, and that he knew the marshal was after him. He also said that, if the sheriff had been a day later, he would have been in Washington Territory or somewhere out west.

The defendant, in his testimony, corroborated the prosecutrix in regard to her desire to go to Benton City, and her inability to do so on account of being on the wrong train. He got into conversation with her on the train, and she asked him where he lived, and what business he was engaged in. He told her he lived in Montgomery City, and kept a saloon there. She asked him if there was a hotel there, and he replied there was one near the depot where he boarded, and it was a good place to stop at. She told him she had the toothache, and wanted to know if he...