State v. Gant

• Decision Date: 20 December 1930
• Docket Number: 30134
• Citation: 33 S.W.2d 970
• Parties: STATE v. GANT
• Court: Missouri Supreme Court

33 S.W.2d 970

STATE v. GANT

No. 30134

Supreme Court of Missouri, Second Division

December 20, 1930

F. L Sperry, of Albuquerque, N. M., and Vance Julian, for appellant.

Stratton Shartel, Atty. Gen., and Walter E. Sloat, Asst. Atty. Gen for the State.

OPINION

COOLEY, C.

Appeal by defendant from the judgment of the circuit court of Henry county sentencing him to two years in the penitentiary. The information was in two counts. The first count charged defendant with the crime of rape upon one Anna Mariah King, a female child under the age of 16, to wit, of the age of 11 years, by having carnal knowledge of her (without force) on or about the -- day of June, 1928. The second count charged that defendant, on or about the -- day of June, 1928 feloniously defiled said Anna Mariah King by having carnal knowledge of her, she being then and there a female child under the age of 18 years, to wit, of the age of 11 years, committed to defendant's custody, protection, and employment. The first count is drawn under section 3247, R. S. 1919, as amended in 1921, and the second under section 3260, R. S. 1919. Defendant does not challenge the sufficiency of either count; hence the information need not be set out. Both counts evidently were intended to relate to the same occurrence, though the evidence was not limited to the single act charged nor to that date. The case was submitted to the jury upon both counts, and a general verdict of guilty was returned, upon which the court sentenced defendant. As the judgment must be reversed and the cause remanded for error presently to be noted, a brief outline of the facts will be sufficient.

The state's evidence tended to show that prosecutrix was defendant's stepdaughter; her mother, Frances King Gant, having married defendant in 1922 when prosecutrix was less than 6 years of age. The act upon which the information is based is shown to have occurred at defendant's home on June 13, 1928, when prosecutrix was 11 years old. According to the child's testimony defendant began having carnal knowledge of her when she was about 6 years old, and continued so to do two or three times a week from that time until the mother discovered the relationship on June 13, 1928. Mrs. Gant testified that on the latter date she caught defendant in the act of sexual intercourse with prosecutrix. During all the time in which the child testified the frequent intimacy continued, she helped about the house, attended school, and participated in childhood play with no apparent inconvenience, and the mother testified that she noted nothing about the child's clothing or in her appearance or conduct to arouse her suspicions; that she first suspected wrongdoing by her husband toward the child from certain conduct on his part about a week before she made the discovery above mentioned, and after said discovery she questioned the child, and the latter then told her what had been going on.

Prosecutrix testified that, while the sexual acts with defendant caused her pain, there was never any bleeding, and a physical examination made before the trial did not reveal evidence of laceration. It was shown that prosecutrix's vagina was considerably dilated.

Defendant took the witness stand and denied having at any time carnally abused the child. He also offered evidence tending to impeach prosecutrix and her mother and evidence of doctors tending to show that complete sexual intercourse, as testified by prosecutrix, by an adult male with a child 6 to 8 years old, could not have occurred without laceration and bleeding, and could not have occurred with the frequency testified to by prosecutrix without detrimental effect to her health which would have been noticeable to her mother and to others.

I. At the close of the evidence, defendant moved the court to require the state to elect on which count of the information it would ask submission of the case, which motion the court overruled. Error is assigned on that ruling.

Generally, when an indictment or information contains two or more counts charging separate and distinct felonies, the state will be required to elect on which count it will proceed. State v. Guye, 299 Mo. 348, 252 S.W. 955; State v. Link, 315 Mo. 192, 286 S.W. 12, and cases cited; State v. Presslar, 316 Mo. 144, 290 S.W. 142. But, where the different counts relate to the same transaction and involve the same facts and are so far cognate that a conviction under one count will bar a prosecution for the offense charged in the other, it appears that two or more counts may be joined in one indictment or information even though the acts charged may be violations of different sections of the statute and may constitute different offenses, in which case the court may in its discretion submit both or all of the counts to the jury under appropriate instructions, but the jury must be instructed that there can be a conviction only under one count. Doubtless if the circumstances were such that failure to require an election would operate prejudicially to a defendant's rights, it would be error for the court to refuse to require it. The rule frequently quoted with approval by this court was thus stated in State v. Christian, 253 Mo. 382, 394, 161 S.W. 736, 739, that, except where otherwise provided by statute, 'only such offenses may be joined as arise out of the same transaction and which are so far cognate as that an acquittal or conviction for one would be a bar to a trial for the other.' In view of other statements in that opinion and of other decisions of this court, it would seem that the rule as above quoted, while in general correct, is in one respect inaccurately stated, if it is meant that the offenses must be such that an acquittal of the offense charged in one count would be a bar to prosecution for the offense charged in the other count had they been separately charged. In the same opinion (Christian Case) the court says: 'We have held, however, that a count for forgery may be joined with a count for uttering the instrument forged (State v. Carragin, 210 Mo. 351, 109 S.W. 553, 16 L. R. A. [N. S.] 561), and that a count for larceny may be joined with a count for receiving stolen goods. (State v. Richmond, 186 Mo. 71, 84 S.W. 880).'

A trial and acquittal on a charge of larceny does not bar a prosecution for receiving the same goods knowing them to have been stolen. State v. Fink, 186 Mo. 50, 84 S.W. 921. Nor would a trial and acquittal of forgery be a bar to prosecution for uttering the forged instrument.

In State v. Richmond, supra, in which counts for larceny and for receiving stolen goods were joined, it was held that a motion to require the state to elect was addressed to the sound discretion of the court. See, also, State v. Morris, 263 Mo. 339, 172 S.W. 603, holding that counts charging felonious assault and exhibiting a deadly weapon in a rude angry, and threatening manner, both counts being based on the same facts, were properly joined and that refusal of the court to require an election was not prejudicial error, the defendant having been...