State v. English

• Decision Date: 18 December 1928
• Docket Number: No. 29041.,29041.
• Citation: 11 S.W.2d 1020
• Parties: STATE v. ENGLISH.
• Court: Missouri Supreme Court

11 S.W.2d 1020

STATE v. ENGLISH.

No. 29041.

Supreme Court of Missouri, Division No. 2.

December 18, 1928.

Appeal from Circuit Court, Pettis County; Dimmitt Hoffman, Judge.

Pearlie English was convicted of statutory rape, and he appeals. Affirmed.

H. K. Bente and C. I. Bennington, both of Sedalia, for appellant.

Stratton Shartel, Atty. Gen., and Claude E. Curtis, Sp. Asst. Atty. Gen., for the State.

HENWOOD, C.

The appellant (a Negro) was charged with the crime of statutory rape in the circuit court of Pettis county. Upon trial, he was convicted and his punishment assessed at imprisonment in the penitentiary for 3 years. He was sentenced accordingly, and appealed.

According to the testimony of Cora Kaley, the prosecutrix (a Negro girl), she was 11 years of age and lived with her mother, Elizabeth Kaley, at 105 East Ham street, in the city of Sedalia, Mo., at the time of the alleged offense (August 17, 1926). She reached her twelfth birthday on March 28, 1927, and was attending Franklin school in Sedalia at the time of the trial, in April, 1927. About noon on August 17, 1926, the day in question, while on her way from her mother's home to the home of one of her playmates a few blocks distant, she saw appellant at "Mrs. Cooper's," one of her mother's neighbors. He gave her 50 cents and told her "to bring him an ink tablet back." She went on to her playmate's home and played awhile, stopped at "Scott's store" on her way back and got a tablet, and delivered the tablet and 45 cents to appellant at his mother's home, "three doors" west of her mother's home, about 2 o'clock in the afternoon. She "knocked at the door" and, upon his suggestion, she went in the house. She and appellant were the only persons in the house. He grabbed her, threw her on the bed, took down her bloomers, and had sexual intercourse with her. While he was doing so, she "hollered" and he put his hand on her mouth. After being "on top" of her for "a long while," he "let her up," gave her a nickel, and told her "not to tell any one." It hurt her when appellant was having sexual intercourse with her and for a "long time" after that. She "hollered a lot and tried to get up" while he was engaged in this act. This happened on Tuesday, August 17, 1926, the second day of the State Fair at Sedalia. Soon thereafter, she went with her sister to visit relatives at Prairie Home near Boonville, Mo. She thought she left Sedalia "after the Fair was over," but was not sure as to the day. She was taken sick "on Thursday" before she went to Prairie Home. She returned to her mother's home in Sedalia about a month later, when she told her mother, the first time, what appellant had done to her. About that time, or a day or two later, she talked to Miss Rose Waddell, Dr. Dancey, and Mrs. Ireland, one of her mother's neighbors, about it. No one told her to say that she "had relations" with appellant. She "didn't have a doctor" while at Prairie Home, and her mother did not call a doctor to treat her when she came back to Sedalia. The first time a doctor examined her was in September, after she came home.

Grace Rucker, a Negro woman, who lived across the street from the home of appellant's mother, testified that she had known Cora Kaley "a long time" and appellant "a good while." Appellant sent Cora Kaley to get a tablet for him. She saw her when she went after the tablet and, later, "when she went in the house" with the tablet. At that time, appellant was there, but "nobody" else. She did not see Cora when she came out of the house, and did not know "how long she stayed there."

Elizabeth Kaley, mother of Cora Kaley, testified that appellant's mother was her neighbor, and she sent Cora there to get milk and butter. Cora was sick in September, but she did not find out "what was the trouble" until Miss Waddell came to see Cora and called the doctor. She talked to appellant while he was in jail, before the trial, and he first said he was going to get out and kill Mrs. Ireland and Grace Rucker and Miss Waddell; then said he would not do that, but would see that Mrs. Ireland and Grace Rucker were sent to the penitentiary, and that Miss Waddell lost her job; and said "he was going to prove I wasn't nothing."

Miss Rose Waddell, "Secretary of the Sedalia Welfare Office," said that Nora Spears reported "the case" to her on Saturday, September 18, 1926. She went immediately to see Cora Kaley, then requested Dr. Dancey to examine the girl and report the result of his examination to her office. After the doctor's examination on Sunday, she investigated the case among the neighbors of the Kaley family. On Monday morning, appellant came to her and said he wanted a report on the condition of Cora Kaley; that he had been to see her (Cora Kaley) on Sunday and got some medicine for her, but feared she would be neglected "because her mother belonged to a religious denomination that did not approve of medicine"; and that "he could persuade her to take the medicine or any kind of nourishment the Doctor advised, because he had more influence over her than anybody else."

Dr. Dancey, a Negro, testified, concerning his examination of Cora Kaley: "She was suffering at the time with high temperature, pain in the abdomen and she had been vomiting, and I made an examination and found she had at the time enteritis; I further made an examination and found out that she had the vaginal wall, that it had been considerably dilated. Enteritis comes from indigestion of the food, comes from traumatism, it comes from various causes." The dilation of her vaginal wall indicated that she had had sexual intercourse several times. The first act of sexual intercourse with a girl of her age would cause inflammation in the vaginal wall, and a continuation of such intercourse would cause the vaginal wall to be dilated. He could not tell definitely as to when such acts of sexual intercourse occurred, but "from the effects of the parts it showed it wasn't recent." Her fever, soreness, and pain might have been caused by a hit or bruise of some kind, or it might have been caused by violent sexual intercourse "at a specified time."

Appellant took the stand in his own behalf and testified that he was 33 years old, at the time of the trial, and was married and lived with his wife and two children at 1002 North Osage street in Sedalia. He was a disabled veteran of the World War, and, since leaving the United States Veterans' Hospital, had been assisting colored veterans of the World War and their dependents, and veterans of the Civil War and their dependents, in getting their pensions and work of that kind. He denied that he had ever had intercourse with Cora Kaley, and said that he was at home all day on Tuesday, August 17, 1926, until 5 o'clock in the afternoon, when he went "down town." He was not at his mother's home on that day, and did not see Cora Kaley that day. On Sunday, September 19, he learned, from his sister, that the doctor had called at Mrs. Kaley's house, and he stopped to inquire as to who was sick. He found that Cora was sick, and got medicine for her, two prescriptions left by the doctor, at her mother's request. After getting the medicine, he stayed there for an hour and a half, and noticed Mrs. Kaley never attempted to give Cora the medicine. On the following morning (Monday), he went to Miss Waddell's office and reported Mrs. Kaley's failure to give Cora the medicine, and talked, over the matter with Miss Waddell. He told her Mrs. Kaley did not give Cora the medicine "because she belongs to a church in which they teach against medicine." And Miss Waddell said she would have the doctor take the girl away and treat her elsewhere, if her mother did not give her the medicine and other proper care. He never told Miss Waddell he could get Cora to take the medicine, and "made no suggestion like that at all." He also denied the threats and other statements, which Mrs. Kaley said he made to her while he was in jail. On cross-examination, he admitted that he visited at his mother's home frequently, and that he saw Cora Kaley frequently while visiting in that neighborhood. He said that, while at his mother's home on the afternoon of July 21, 1926, he did send Cora to the store to get a tablet for him, and when she returned with the tablet, he was sitting on the front porch, and his niece was in the house. He gave Cora 10 cents when he sent her for the tablet, and, when she returned with the tablet and 5 cents, he gave her the 5 cents "for bringing the tablet."

Appellant's wife testified she was at home all day Tuesday, August 17, 1926, and appellant remained at home all of that day until about 5 o'clock in the afternoon. His mother and his stepfather testified they were at home all day, and that neither appellant nor Cora Kaley was there at any time during that day.

Several witnesses testified to appellant's good reputation for truthfulness, honesty, and morality, and some of these witnesses said Cora Kaley had a bad reputation for truth, veracity, and morality.

In rebuttal, the state produced several witnesses who said appellant had a bad reputation for truth, veracity, and morality.

I. It is seriously contended that the story of the prosecutrix is incredible, and therefore furnishes no substantial basis for the judgment of conviction in this case. The above recital of the...