State v. Fleming
| Citation | 188 S.W.2d 12,354 Mo. 31 |
| Decision Date | 11 June 1945 |
| Docket Number | 39463 |
| Parties | State v. Edward William Fleming, Appellant |
| Court | United States State Supreme Court of Missouri |
Appeal from Circuit Court of City of St. Louis; Hon. James F Nangle, Judge.
Reversed and remanded.
Joseph M. Walsh and John L. Sullivan for appellant.
(1) Particulars or details of the prosecutor's complaint are inadmissible in evidence. People v. Romano, 306 Ill 502; State v. Powers, 168 N.W. 856, 181 Iowa 452; Frost v. State, 57 So. 221; Brandham v State, 170 So. 222; Curry v. State, 122 So. 303; People v. Cappalla, 154 N.E. 454. (2) Defendant cannot be cross-examined as to matters not mentioned in direct testimony. State v. Pfeifer, 183 S.W. 337, 267 Mo. 23; State v. Goodwin, 195 S.W. 725, 271 Mo. 73; State v. Nicholson, 87 S.W.2d 425, 337 Mo. 998.
J. E. Taylor, Attorney General, and B. Richards Creech, Assistant Attorney General, for respondent.
(1) Error cannot be predicated on admission of testimony to which no objection is disclosed by the record. State v. McNabb, 267 S.W. 606; State v. Howard, 177 S.W.2d 616; State v. Koch, 16 S.W.2d 205, 322 Mo. 106; State v. Watson, 44 S.W.2d 132, 329 Mo. 158; State v. Thomas, 82 S.W.2d 885; State v. Cade, 34 S.W.2d 82, 326 Mo. 1132; State v. Buckner, 80 S.W.2d 167; State v. Taylor, 8 S.W.2d 29. (2) The evidence given by witnesses Lloyd Genail and the two police officers was original evidence and was correctly offered by the state to corroborate the prosecutrix; therefore, the attack made by the defendant is not well taken. State v. Robison, 106 S.W.2d 425; State v. Mansell, 133 S.E. 190; Tinker v. State, 269 S.W. 778; State v. Taylor, 8 S.W.2d 29; State v. Conrad, 14 S.W.2d 608; Johnson v. State, 45 S.W.2d 989; Brown v. State, 155 So. 358. (3) In the cross-examination of the prosecutrix in a rape case, if the foundation is laid for her impeachment, the state has the right to rehabilitate the prosecutrix' testimony. State v. Simmons, 39 S.W.2d 774; State v. Richardson, 163 S.W.2d 956, 349 Mo. 1103; State v. Jones, 61 Mo. 232; State v. Bateman, 198 Mo. 221, 94 S.W. 843; State v. Lawhorn, 250 Mo. 293, 157 S.W. 344; State v. Foley, 130 Mo. 482, 32 S.W. 973; 4 Wigmore on Evidence (3 Ed.), secs. 1134-1141; State v. Conrad, 14 S.W.2d 608; State v. Baldwin, 317 Mo. 759, 297 S.W. 10; State v. Bushman, 29 S.W.2d 688, 325 Mo. 553, 70 A.L.R. 904. (4) Declarations of prosecutrix immediately following the assault are admissible as part of the res gestae. State v. Gilreath, 267 S.W. 880.
Bohling, C. Westhues and Barrett, CC., concur.
Edward W. Fleming appeals from a judgment imposing a sentence of four years' imprisonment for statutory rape. (Sec. 4393, R.S. 1939.) Prosecutrix was twelve years of age.
We think defendant's claim of error in the admission in evidence, directly and by inference, of details of statements made by the prosecutrix when she made complaint concerning the crime charged against defendant to be well taken. The State contends error was not committed because (1) defendant interposed no objection to this testimony; (2) the testimony was admissible as original evidence, and (3) was also admissible, after the impeachment of the prosecutrix, to rehabilitate the prosecutrix through corroborating testimony tending to reestablish her credibility.
Prosecutrix testified on direct examination to the fact of the offense and to the fact of making complaint. She told how, while she was on the way to school one morning, defendant stopped his automobile, offered her a ride, took her to his house and committed the offense. She detailed facts, among others, in her examination in chief concerning the left front fender of defendant's automobile being torn and dented, the door of the glove compartment flying open time and again; two garage doors in the yard; some old shoes on the back porch of the house; the absence of a knob on the door to the room in which the offense occurred; and defendant, after the offense, handing her a towel having red and white blocks. She complained later in the day to, including others, her father and two police officers. She testified "I told the police officers and then I took them over to where he lived, and I showed them the direction." Defendant's objection to anything prosecutrix told the police on the ground it was attempting to bolster the credibility of the witness when no attempt had been made to attack her credibility was overruled. Then: " Thereupon, complying with the court's ruling, defendant asked that his objection be considered to run against any questions of this nature and the court responded that the record should so show and also should show the saving of exceptions. Prosecutrix, in response to inquiry, detailed the route the officers took at her direction. She told about again seeing defendant's automobile; the damaged fender; the glove compartment door which opened easily; the garage doors in the yard; the shoes on the back porch; the absence of the knob on the door in the bedroom, stating "I showed them that." Defendant renewed his objections at the close of prosecutrix's examination in chief asking, first, for a mistrial and, next, that the jury be instructed to disregard the objectionable testimony. This was overruled and exceptions saved.
We shall not detail by witnesses the testimony of prosecutrix's father and the two police officers, much of which was cumulative on the matter at hand. With respect to each witness the record discloses defendant's objections were overruled and the understanding his objections were to run against all like testimony, with exceptions saved, and, at the close of the respective witnesses' testimony in chief, defendant's requests for a mistrial and, then, to have the jury instructed to disregard the objectionable testimony; all overruled with exceptions saved. Testimony adduced from these witnesses was to the effect prosecutrix said "she could point out the house"; that before they (prosecutrix, her father, and two police officers) started to defendant's house they were looking for specified things and descriptions of the things looked for were given in evidence -- a man of a specified description; an automobile having a badly damaged left front fender and a glove compartment door that came open easily; two large garage doors under a tree in a yard; a rear porch with shoes on it; a bedroom door without knobs and a red and white plaid towel. Under the record only prosecutrix could have furnished these descriptions. The items were found at defendant's house and identified by prosecutrix. This occurred: One of the officers testified about defendant coming to the door;
The State's position that the issue is not before us because no objection was interposed by defendant is refuted by the record. The trial proceeded, with the consent of the court and the acquiescence of the State, on the theory defendant's objections were running against (in addition to the particular testimony at the time of the objection and exception) all testimony disclosing or tending to disclose, directly or indirectly, the details of prosecutrix's statements when she made complaint of defendant to third persons on the grounds such testimony was hearsay; self-serving insofar as it supported prosecutrix's testimony under oath and an attempt to bolster prosecutrix's credibility as a witness; and, absent any sufficient attempt to impeach prosecutrix, was not admissible on the theory it tended to rehabilitate her credibility.
Testimony tending to establish the following facts as facts was relevant and admissible in the circumstances of the instant case for several reasons; for instance, it was descriptive of things used in the commission or at the scene of the offense and established a circumstance or circumstances connecting defendant with its commission. We refer to the fact of the damaged fender and the condition of the glove compartment door of defendant's automobile; the garage doors in the yard; the shoes on the back porch; the absence of a knob on the door, and the finding of the red and white plaid towel in defendant's bathroom. The result that this testimony also corroborated prosecutrix was more incidental to its admissibility than determinative thereof. The following cases among others support the conclusion: State v. Robinson (Mo.), 106 S.W. 2d 425, 427[5]; State v. Buschman, 325 Mo. 553, 556, 29 S.W. 2d 688, 689[1], 70 A.L.R. 904; State v. Nolan (Mo.), 171 S.W. 2d 653, 655[5]. Defendant's objections, however, were against that portion of narratives of the prosecutrix's complaint to the respective witnesses which covered, directly or indirectly, her statements to them detailing the existence of said facts in the course of her complaint.
In prosecutions of this nature involving the use of force the fact that the outraged female made complaint is competent evidence in chief; the reason sometimes advanced being that complaint negatives consent and a failure to complain carries a strong, not necessarily conclusive, presumption that her testimony of violence is false and the charge malicious and feigned. It is the general rule (one of the early cases being Rex v. Clarke (1817), 2 Stark Rep. 241, 242) although different in some jurisdictions, that the details of the statements made by the prosecutrix in her complaint are not admissible in the...
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