State v. Edelen
| Decision Date | 23 May 1921 |
| Docket Number | No. 22580.,22580. |
| Parties | STATE v. EDELEN. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Clark County; N. M. Pettingill, Judge.
Glen Edelen was convicted of rape, and his motions for new trial and in arrest of judgment were overruled and sentence passed, and he appeals. Reversed and remanded for new trial.
On November 25, 1919, the prosecuting attorney of Clark county, Mo., filed with the clerk of the circuit court, in vacation, an information, which, omitting caption, reads as follows:
The affidavit mentioned in the information, without caption, reads as follows:
On December 1, 1919, defendant filed a motion to quash said information, which was overruled by the court. On December 3, 1919, defendant was arraigned, and entered a plea of not guilty. On December 3, 1919, appellant was placed on trial before a jury. The state's evidence, in a general way, tended to show the following facts:
Prosecutrix, Golda Hoffeditz, 19 years of age, lived with her parents on a farm. Appellant, 22 years of age, lived with his mother on a farm about 2½ miles distant from the said prosecutrix. Both lived in the vicinity of the town of Revere, Clark county, Mo. On the night of August 23, 1919, appellant, in a Ford touring car, took prosecutrix to Farmington, where they attended a picture show. They left Farmington on their trip homeward about 11 o'clock p. m., returning the same route they had gone until they reached the town of Anson, at which place appellant grabbed the wheel and turned into another and different route, which was hilly and not much traveled and on which route there were few or no houses, and which led through, along, and over private ways and a road that was narrow with brush on either side. Here, according to the testimony of prosecutrix, appellant stopped the car, and while in the front part of said car forcibly ravished prosecutrix. He then took prosecutrix to her home, arriving there about 2:30 a. m., August 24th. Here appellant left prosecutrix at the gate, continuing on to his home. When they got to the gate at prosecutrix's home, appellant asked her if he could come back and prosecutrix answered, "Try it if you want to get run off the place." Appellant said if he could not come back he wanted his ring; whereupon prosecutrix returned his ring, received from appellant her ring, and went upstairs and called her mother. She informed her mother of appellant's treatment of her and exhibited her torn and blood-stained clothing and wounds she sustained. When prosecutrix came down stairs to breakfast that morning she made complaint to her father. She did not eat any breakfast. The testimony showed that she had a scratch on her chest, mark across her back and stomach; her arms were red from her wrists to her elbows. There was a mark on her wrist and her knees were discolored. Her private parts bore bruises. Dr. McConnell, the family physician, was called the afternoon of August 24th, and made an examination of prosecutrix. He, in company with Dr. Bridges, made an examination of her later in the day. Dr. McConnell testified that he found a discoloration on her back; that she complained of tenderness of the chest and knees; that he had theretofore treated her for the flu, which left her in a nervous condition; that he saw no discoloration about her private parts that would indicate that anything had happened; that there was some laceration of the female organs and a slight bloody secretion. Dr. Bridges testified that prosecutrix had some marks on her body; that a mark on her knee had begun to discolor; that there was a scratch on her shoulder; that her loot was bruised; that her private parts were tender with the serum mucus coming from the vagina.
Defendant's Evidence.
The testimony on the part of appellant was to the effect that on several occasions shortly preceding the night of August 23, 1919, he had taken prosecutrix to Farmington, sometimes alone with her, at other times in company with his brother and sister of his deceased wife; that on these occasions appellant and prosecutrix would ride with their arms about each other and would stop and "visit" on the way; that on these occasions he would have his arms around prosecutrix, feeling her body; that she would sit in his lap and permit him to hug and kiss her. Appellant admits that on the night of August 23d, in returning home from Farmington, he left the main road at Anson, because it had been freshly worked and made travel thereon difficult. He testified that he and prosecutrix stopped on the way and that be had sexual intercourse with her while he was upon his knees in the front part of the car, but that he did not force her. The testimony further shows that at this time prosecutrix weighed about 0 pounds and appellant about 160 pounds.
Such other parts of the testimony, the instructions, rulings of the court, etc., as may be deemed necessary or important, will be considered in the opinion.
On December 4, 1919, the jury found defendant guilty and assessed his punishment at imprisonment in the penitentiary for 25 years. Defendant, in due time, filed his motions for a new trial and in arrest of judgment. Both motions were overruled, and on the following day the court rendered judgment and passed sentence upon appellant in conformity to the terms of the verdict. Thereupon defendant duly appealed the cause to this court.
Perry S. Tinder, of Jefferson City, and T. L. Montgomery and J. A. Whiteside, both of Kahoka, for appellant.
Jesse W. Barrett, Atty. Gen., and Albert Miller, Asst. Atty. Gen., for the State.
RAILEY, C. (after stating the facts as above).
On December 1, 1919, appellant filed his motion to quash the information heretofore set out, upon four grounds, two of which read as follows:
The information was not sworn to by either the prosecuting attorney or any other person. It purports, on its face, to be based on the affidavit of Golda Hoffeditz, which contains substantially the same facts as are set out in the information. The affidavit of the prosecutrix, supra, was sworn to and filed with the information. The sufficiency of the latter is properly challenged by the motion to quash. It is strenuously insisted by appellant that the trial court committed reversible error in overruling his motion to quash said information. We will postpone a consideration of this subject until we determine whether it is necessary to reverse and remand the cause for a new trial upon some other ground. If it should become necessary to reverse and remand the case, the subject-matter of above complaint can be obviated by the filing of an amended information covering the foregoing objection.
2. Appellant assigns as error the action of the court in overruling his challenge as to the qualification of certain jurors to sit in the trial of the case. This proposition, like the preceding one, would not probably arise upon a retrial of the cause, and hence will be postponed until other questions, hereafter mentioned, are determined.
3. Appellant earnestly contends that with the sanction of the trial court his constitutional and statutory rights were ruthlessly stricken down by counsel employed to assist the state, who compelled him, under the ruling of the court and against his protest, to testify before the jury as to prejudicial matters not brought out or referred to in his examination in chief. We were much impressed with the seriousness and importance of this charge at the oral argument in this court, and will endeavor to set out the substance of the testimony, with the rulings of the court in respect to this matter, while considering same.
While the prosecutrix was upon the stand, the clothes and underclothes which she claims to have worn were produced before the jury, each item identified, some of which were torn, and some had spots on them.
The cross-examination of defendant was conducted by Mr. Hartzell. The first three pages of same, taken literally from `ale transcript on file, read as follows:
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