State v. Gentry

• Citation: 8 S.W.2d 20,320 Mo. 389
• Decision Date: 21 June 1928
• Docket Number: 28383
• Parties: The State v. Overton H. Gentry, Jr., Appellant
• Court: United States State Supreme Court of Missouri

8 S.W.2d 20

320 Mo. 389

The State v. Overton H. Gentry, Jr., Appellant

No. 28383

Supreme Court of Missouri

June 21, 1928

Appeal from Jasper Circuit Court; Hon. Grant Emerson Judge.

Reversed and remanded.

T C. Tadlock, Norman A. Cox and Hugh Dabbs for appellant.

(1) The motion for a new trial assigned error on the part of the trial court in refusing to give defendant's requested instruction declaring that "under the law and evidence in this case the jury should find the defendant not guilty," and, in not sustaining paragraph 1 of said motion that "there is no substantial evidence in the case to support such a verdict." Under the following authorities, the trial court should have set aside the verdict. State v. Enger, 296 S.W. 145; State v Finley, 237 S.W. 491; Browne v. State (Wis.), 7 Am. & Eng. Ann. Cases, 260; Devory v. State (Wis.), 99 N.W. 455; State v. Tevis, 234 Mo. 284; State v. Goodale, 210 Mo. 290; State v. Brown, 209 Mo. 413; State v. Cunningham, 100 Mo. 391; State v. Miller, 191 Mo. 587; State v. Burgdorf, 53 Mo. 65; State v. Davis (Mo.), 190 S.W. 297; State v. Parris, 259 Mo. 437; State v. Welton, 225 S.W. 965; State v. Kelsey, 228 S.W. 756; State v. Keller, 229 S.W. 204; State v. Kellner, 278 S.W. 825; State v. Donnington, 246 Mo. 355; State v. Walker, 263 Mo. 665; State v. Gordon, 199 Mo. 596; State v. Harrison, 263 Mo. 655; State v. Primm, 98 Mo. 368; State v. Lewkovitz, 265 Mo. 613; State v. Harmon, 296 S.W. 396; State v. Tunnell, 296 S.W. 427. (2) The court erred in trying defendant jointly with Wilkins Taylor after the court had granted a severance, and in instructing the jury, in Instruction 4, assigned as error in the motion for a new trial, in that said instruction, notwithstanding the severance granted, authorized the jury to consider acts and conduct of Taylor in the trial of the case against defendant alone. Sec. 4004, R. S. 1919. (3) The court erred in giving Instruction 5 to the jury relating to and defining forcible intercourse assigned as error in the motion for a new trial, in that said instruction authorized the jury to determine the vital issues in the case on a part only of the evidence, and submitted to the jury mixed questions of law and fact. State v. Post, 286 Mo. 658; State v. Darrah, 152 Mo. 542; State v. Miller, 191 Mo. 596; State v. Lewkovitz, 265 Mo. 634. (4) The court erred in giving Instruction 7 to the jury, assigned as error in motion for new trial, in that said instruction was misleading, prejudicial and did not properly declare the law and did not inform the jury as to what particular acts the court referred to as immoral, but failed to caution the jury that collateral facts, not connected with the charge for which defendant was on trial, were admissible only to the extent, if any, that such facts tended to prove some of the elements of the crime for which defendant was then on trial, and because, in said instruction the court told the jury, in effect, that the crime of rape, for which defendant was on trial, was made up of acts of immorality, that is, of the same nature and character of the offenses of adultery, fornication and immoral conduct, and the instruction was misleading, confusing and inconsistent with Instruction 4, given by the court of its own motion. State v. Enger, 296 S.W. 145; State v. Miller, 191 Mo. 587. (5) The court erred in giving Instruction 9 to the jury, assigned as error in motion for new trial, in that said instruction was of a highly prejudicial nature against defendant and called the attention of the jury to an alleged collateral and independent crime for which defendant was then in said court, charged by a separate information, to-wit, the crime of sodomy, and also called the attention of the jury to the crimes of sodomy and rape, with which Taylor was charged, notwithstanding a severance had been granted to Taylor and Gentry in the crime for which defendant was then on trial; was an illegal, unlawful and prejudicial comment on the evidence and called the jury's attention, in the trial of defendant, to the alleged, unlawful act of Wilkins Taylor. State v. Guerringer, 265 Mo. 419; State v. Tunnell, 296 S.W. 427; State v. Pfeifer, 267 Mo. 29. (6) The court erred in giving Instructions 7 and 9, of its own motion, because said instructions were unfair, illegal and unjust. (7) The court erred in refusing to give to the jury defendant's requested cautionary instruction "F," referred to in motion for new trial, covering one specific subject, viz: "That the jury could not find defendant guilty in the case upon proof alone that defendant had intercourse with the complaining witness Bertha Goen," in that said refused instruction directly told the jury that mere intercourse was not sufficient to constitute the crime of rape, and in that the court in no other instruction specifically stated this important principle of law to the jury, and because said instruction plainly presented the converse of what the court improperly and erroneously stated to the jury in given Instruction 5. State v. Daugherty, 287 Mo. 82; State v. Cantrol, 234 S.W. 80; State v. Major, 237 S.W. 487; State v. Gurne, 390 Mo. 14; State v. Cardwell, 312 Mo. 144.

Frank R. Birkhead, Special Prosecutor, for respondent.

(1) The case was properly submitted to the jury and the court did not err in refusing to sustain the demurrer to the evidence. Kelley's Crim. Law & Proc., 475, sec. 541; State v. Wilcox, 111 Mo. 569; State v. Welch, 191 Mo. 179; State v. Dilts, 191 Mo. 665; State v. Devorss, 221 Mo. 469; State v. Barbour, 234 Mo. 526; State v. Urspruch, 191 Mo. 43; State v. Miller, 191 Mo. 612; State v. Marcks, 140 Mo. 661; State v. Espenschied, 212 Mo. 215; State v. Ripey, 229 Mo. 657; State v. Bowman, 161 Mo. 88; State v. Bateman, 198 Mo. 212; State v. Alexander, 184 Mo. 266; State v. Dent, 170 Mo. 398; State v. Thornhill, 177 Mo. 691; State v. Franke, 159 Mo. 535; State v. Sechrist, 226 Mo. 574; State v. Harrison, 263 Mo. 642; State v. Lewkowitz, 265 Mo. 613; State v. Martin, 195 S.W. 731; State v. Bigley, 247 S.W. 169; State v. Katz, 266 Mo. 493; State v. Hutchens, 271 S.W. 525; State v. Dalrymple, 270 S.W. 675; State v. Cook, 3 S.W.2d 366; State v. Pinkard, 300 S.W. 751. (2) The court did not err in giving Instruction 4, notwithstanding the severance granted, as the testimony on the part of the State showed the offense was committed by both defendants and in the presence and with the aid, encouragement and assistance of each other. State v. Dalrymple, 270 S.W. 675; State v. Parsons, 285 S.W. 414; Kelley's Crim. Law & Proc. (3 Ed.) 472, sec. 538. (3) The court did not err in giving Instruction 5. This instruction requires proof not only of absence of consent of the prosecutrix but also forcible intercourse. It does not authorize the jury to determine the vital issues of the case on a part only of the evidence, and does not submit mixed questions of law and fact. State v. Dalrymple, 270 S.W. 675; State v. Parsons, 285 S.W. 414; Kelley's Crim. Law & Proc. (3 Ed.), 472, sec. 538. (4) There is nothing prejudicial about Instruction 7. It is not misleading. It further emphasizes the necessity of finding the elements of rape (as set forth in Instruction 4) before a conviction could be had. It cautions the jury against convicting for mere sexual intercourse or for sodomy. (5) Evidence of the commission of sodomy by the appellant, or by Wilkins Taylor in company with appellant, were admissible in evidence as part of the res gestae. State v. Harrison, 263 Mo. 642; State v. Lewkowitz, 265 S.W. 613; State v. Katz, 266 Mo. 493. (6) Appellant cannot complain of the refusal of the court to give Instructions F, G and H, as this was fully covered by other instructions, especially, Instructions 4, 5 and 7. State v. Dougherty, 287 Mo. 82, 228 S.W. 788. It was not error to refuse Instructions F, G and H, as the last sentence in Instruction 4, viz.: "And if you do not so find, you will acquit the defendant," was equivalent to a converse instruction. State v. Rutherford, 152 Mo. 124; State v. Fredericks, 136 Mo. 59; State v. Dalrymple, 270 S.W. 675.

Henwood, C. Davis, C., concurs; Higbee, C., concurs in the result, but dissents as to Paragraph I.

OPINION

HENWOOD

By an information filed in the Circuit Court of Jasper County, Overton H. Gentry, Jr. (appellant), and one Wilkins Taylor were jointly charged with the crime of rape. A severance was granted, and, upon a separate trial, Gentry was convicted and sentenced to imprisonment in the penitentiary for ninety-nine years, in accordance with the verdict of the jury. The case is here for review on his appeal.

Bertha Goen, the prosecutrix, testified, in substance, that, at the time in question, she was eighteen years of age, weighed between 98 and 100 pounds, and was employed as a domestic servant in the home of Mrs. Walter Jackson in the city of Joplin. About 5:30 on Wednesday afternoon, January 5, 1927 she went to Jamison's Drug Store to get some stamps and face powder. On her way back to the Jackson home, Thelma Gishner came up behind her and asked her to take a ride with her (Thelma Gishner) and two friends. She had met Thelma on the street before, and had gone to a show with her once or twice. After some hesitation, she consented, and Thelma took her back along the street a short distance, and introduced her to Gentry and Taylor, who were sitting in the front seat of a Buick Sedan, parked in front of the West Side Pharmacy. She had no previous acquaintance with Gentry or Taylor and had never seen either of them before. After they talked a few minutes, Thelma left, saying she would go to her friend's room and change her dress and come back for the ride. Gentry and Taylor asked her to get in the car, and, when she declined, Gentry got out, took her...