State v. Famber

• Decision Date: 11 October 1948
• Docket Number: 41057
• Citation: 214 S.W.2d 40,358 Mo. 288
• Parties: State of Missouri, Respondent, v. William Famber, Appellant
• Court: Missouri Supreme Court

214 S.W.2d 40

358 Mo. 288

State of Missouri, Respondent, v. William Famber, Appellant

No. 41057

Supreme Court of Missouri

October 11, 1948

Appeal from Circuit Court of City of St. Louis; Hon. William H Killoren, Judge.

Reversed and remanded.

Morris A. Shenker for appellant.

(1) The court erred in admitting into the record testimony of the prosecutrix to the effect that there had been penetration into the body of said prosecutrix, the testimony clearly showing that such testimony was a conclusion on the part of this witness. State v. Evans, 267 Mo. 163, 183 S.W 1059; State v. Hewitt, 259 S.W. 773; State v Koch, 10 S.W.2d 928; State v. Walser, 318 Mo. 830, 1 S.W.2d 147; State v. Wertz, 191 Mo. 569, 90 S.W. 838. (2) The court erred in failing to instruct the jury on all of the law applicable to the case, and particularly on the law of attempted rape and on the law of common assault: For the State's evidence had put these matters in issue before the court and the jury, and therefore it was the court's duty to instruct the jury on this as well as on all other points of evidence in the case. The court's failure to do this biased and prejudiced the jury against this defendant. Sec. 4070, R.S. 1939; State v. Hoag, 232 Mo. 308, 134 S.W. 509; State v. Mason, 322 Mo. 194, 14 S.W.2d 611; State v. Matsinger, 180 S.W. 85; State v. King, 342 Mo. 975, 119 S.W.2d 277. (3) The court erred in failing to give to the jury a requested instruction dealing with the law of circumstantial evidence. There was no direct proof or evidence of the essential elements of the offense charged against this defendant and, in view of the lack of such evidence, the defendant was entitled to have the jury instructed on the degree of proof required of circumstantial evidence, and the failure of the court so to instruct was to the bias and prejudice of the defendant. 22 C.J., p. 65, sec. 8; Secs. 4070, 4393, R.S. 1939; State v. Atkins, 292 S.W. 422; State v. Buckley, 309 Mo. 38, 274 S.W. 74; State v. Rawson, 259 S.W. 421; State v. Taylor, 347 Mo. 607, 148 S.W.2d 802.

J. E. Taylor, Attorney General, and Will F. Berry, Jr., Assistant Attorney General, for respondent.

(1) The verdict is sufficient. State v. Humphries, 210 S.W.2d 1002; State v. Schmitz, 46 S.W.2d 539. (2) The court did not err in overruling appellant's assignment of error No. 1 in his motion for new trial. State v. Jacobson, 152 S.W.2d 1061, 348 Mo. 258; State v. Thompson, 92 S.W.2d 892, 338 Mo. 897. (3) The court did not err in overruling appellant's assignment of error No. 2 in his motion for new trial. State v. Robinson, 177 S.W.2d 499. (4) The court did not err in overruling appellant's assignment of error No. 3 in his motion for new trial. State v. Hager, 102 S.W.2d 579. (5) The court did not err in overruling appellant's assignment of error No. 7 in his motion for new trial. Sec. 4836, R.S. 1939; State v. King, 119 S.W.2d 277, 342 Mo. 975; State v. Miller, 172 S.W. 385, 263 Mo. 326; State v. Hurlbut, 285 S.W. 469. (6) The court did not err in overruling appellant's assignment of error No. 10 in his motion for new trial. State v. Foster, 197 S.W.2d 313.

OPINION

Ellison, J.

The appellant was convicted of the felony of rape upon a female child ten years old, in violation of Sec. 4393, R.S. Mo. 1939, Mo. R.S.A. Under this statute force is unnecessary in the perpetration of the crime upon a child of that age. We shall refer hereafter to the child here involved only as "the prosecutrix." He was convicted by a jury and his punishment assessed at three years imprisonment in the penitentiary. On this appeal appellant complains of error in: (1) the admission of the testimony of the prosecutrix adduced to prove penetration, his contention being that it constituted a mere conclusion and not direct testimony; (2) the overruling of his motions in the nature of demurrers to the evidence at the close of the State's case and the whole case; (3) the failure to instruct on common assault; (4) the failure to give a requested instruction on circumstantial evidence, on the theory that there was no direct evidence of the rape; (5) the failure to instruct the jury on all the law of the case, as required by Sec. 4070(4); (6) and the giving of four instructions requested by the State -- this on the theory that they erroneously singled out and commented upon immaterial evidence.

It being our duty under Sec. 4150 to search the record proper for error, whether it has been assigned or not, we shall state that we find no such error, and nothing calling for comment, except the fact that the jury's verdict merely assessed the punishment "at three years" -- it did not say in the penitentiary. But that was not fatal. Sec. 4155; State v. Humphrey, 357 Mo. 824, 210 S.W.2d 1002, 1005(10).

In order that all doubt as to the facts may be eliminated, we shall quote them as they are stated in appellant's brief, omitting only the proper names of the prosecutrix and her family, and changing to "appellant" references made to him as "defendant". In a few instances we shall also refer to the testimony in the transcript brought up.

"The State's evidence began with the testimony of one Roscoe C. Haskell, a physician, who testified that on August 1 1946, he examined the person of the prosecutrix in this case; that this examination revealed a torn hymen, a moderate amount of hemorrhage, and other secretions. He stated the age of his patient to be ten years and that the condition of her body was caused by some blunt instrument. On cross-examination this witness stated that the torn hymen could be caused by the penetration of any object and could even be self-inflicted, that the secretion he had referred to could have been the secretion of the prosecutrix, that the only way of determining definitely whether a female had sexual intercourse was by the discovery of spermatozoa, and that no spermatozoa was found on the person of . . . (the prosecutrix).

"Another physician, Doctor Eugene P. Taylor, stated in his testimony that about the first part of August, 1946, the prosecutrix was brought to his office, that he examined the child, found that her vulva was swollen and bruised, and that this represented 'trauma' of the vulva. He stated that this was caused by some blunt force, but that the hymen was still intact, and that the condition was of recent origin.

"The next witness for the State was the mother of the prosecutrix, who stated that she had known the appellant for about three years prior to August 1, 1946, that on various times he had been in their home to fix the radio, that on August 1, 1946, the appellant came to the house to fix the radio, and that she left the house at that time to attend church, leaving at the house the prosecutrix and three other children. Further, that as she boarded a street car, she noticed two of her children on the street, that she almost immediately descended from the street car, went back to her home, and upon entering, noticed the prosecutrix crying. She stated she took the child to the bathroom, and saw a discharge on her privates, and said the child had been 'attacked'. The Court denied the declaration of a mistrial upon this testimony, and the witness continued, stating she took the child to a doctor, told her husband of the alleged incident, and then went to the police. On cross-examination she stated that she had allowed the defendant in her home because she had confidence in him and had never heard anything bad about him.

"Further testimony in the State's behalf included that of the prosecutrix, who testified that she was eleven years of age, that she knew the appellant because he had fixed her mother's radio, that on the 1st of August, 1946, he came to the house, and after her mother had left the house, the appellant forced his attentions upon her and had intercourse with her. That thereafter her mother knocked on the door, and, after the appellant left, she told her mother what had occurred. She testified also that she went to Dr. Taylor's office, was examined by him, and also was sent to the Homer G. Phillips Hospital for examination. Upon her cross-examination by the counsel for the appellant she stated that she was told the name of the male sexual organ by the police, that she did not actually see the penetration, that she felt something along her privates, and that she had assumed this to be his sex organ for he had removed it from his trousers. She stated that he was lying so close to her at the time, that she could not actually see what transpired or what, if anything, accomplished a penetration, or whether there was any penetration whatever.

"There was then offered evidence by two police officers, Clarence G. Stanford and Fred Grimes. Officer Stanford testified that he had participated in the arrest of William Famber by taking a report of the complaint from the prosecutrix' mother, that he had questioned the appellant after his arrest, that the appellant denied that he had raped or had intercourse with the prosecutrix, but said that he had inserted his finger in her vagina. The witness further denied having taken any sworn statement from the defendant at the police station. Officer Grimes testified merely that he had actually arrested the appellant, but had not participated at all in the questioning or further procedure at the police station or elsewhere.

"The appellant testified that he was 52 years of age, a widower that he was a government employee, working as an instructor in aeronautical communications, and that he had a radio shop on the side. He stated that he had known the prosecutrix' mother four or five years, had known her before he knew her husband, or indeed that she was a married woman, and that he severed his relations with her upon discovering that she was...