State v. Greer
| Decision Date | 18 December 1928 |
| Docket Number | 29090 |
| Citation | 12 S.W.2d 87,321 Mo. 589 |
| Parties | The State v. Alfred Greer, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Francois Circuit Court; Hon Peter H. Huck Judge.
Affirmed.
W A. Brookshire for appellant.
(1) The trial court had no authority to require defendant Greer to go to trial alone, in that the order granting the change of venue and designating the causes for such change and the county to which the cause would be transferred as to codefendant Downs until after the jury was sworn to try Greer, and in that no recognizance had been given or approved for Downs, and in that neither defendant had asked for or had been granted a severance. Secs. 3980, 3977, R. S. 1919; State v. Buck, 108 Mo. 622; State v Noland, 111 Mo. 473. (2) To warrant a conviction upon a charge for an assault with intent to commit a rape the evidence must show conclusively that the defendant's intention was, if it became necessary, to force compliance with his desire at all events and regardless of any resistance the woman might make. State v. Priestley, 74 Mo. 24; State v. Burgdorf, 53 Mo. 65; State v. Owsley, 102 Mo. 678; State v. Scholl, 130 Mo. 396; State v. Espenschied, 212 Mo. 215; State v. Hayden, 141 Mo. 311. (3) In the absence of an agreement and in the absence of conclusive testimony that defendant Greer aided and abetted codefendant Downs in an assault to commit a rape, even assuming such an assault was committed, defendant Greer would not be guilty. State v. Gooch, 105 Mo. 392; State v. Burlison, 285 S.W. 712; State v. Orrick, 106 Mo. 120. (4) It is improper argument on behalf of the State's attorneys to allude directly or indirectly upon the failure of the defendant or codefendant to testify in a criminal case. State v. Watson, 1 S.W.2d 837; Sec. 4037, R. S. 1919; Mo. Const., Art. 2, sec. 23; State v. Martin, 74 Mo. 547; State v. Weaver, 165 Mo. 1. (5) It is improper argument to appeal to jurors to convict because of a fear that all law will be set aside and lawlessness reign. State v. Webb, 254 Mo. 415; State v. Hess, 240 Mo. 147; State v. Wigger, 196 Mo. 90.
Stratton Shartel, Attorney-General, and J. D. Purteet, Special Assistant Attorney-General, for respondent.
(1) The trial court quite properly overruled the defendant's demurrer at the close of the State's testimony. The evidence was substantial and sufficient to carry the case to the jury. It is amply sufficient to sustain the conviction. State v. Edie, 147 Mo. 539; State v. Prather, 136 Mo. 24; State v. Dalton, 106 Mo. 469; State v. Shroyer, 104 Mo. 446; State v. Alcorn, 137 Mo. 123. Assault is complete when attempt is made with present means of carrying it into effect. State v. Shroyer, supra; State v. Dalton, supra. The evidence is amply sufficient to show an agreement between defendant Greer and co-defendant Downs to assault the prosecutrix. It further shows that defendant Greer aided and abetted co-defendant Downs in an actual assault upon the person and body of prosecutrix. Sec. 3687, R. S. 1919; State v. Burlison, 285 S.W. 715. (2) The trial court had full and complete jurisdiction of the case. No error was committed in forcing defendant to trial. The record conclusively shows Robert Downs, co-indictee of defendant Greer, was granted a change of venue on May 10, 1927. No change was requested for defendant Greer. Defendant Greer was put to trial on May 12, 1927. The fact of the court's order not having been transcribed cannot alter the situation. The court's order granting the change of venue was made on the 10th day of May, or just two days prior to the date of defendant Greer's trial. There is no merit in appellant's contention. (3) The argument of the prosecuting attorney is not prejudicial. It contains no reference direct or indirect upon the failure of the defendant to testify. The objection that it alludes to the failure of Robert Downs, co-indictee of defendant, to testify is without merit. Downs was not on trial, consequently not a co-defendant. The argument of the State's attorney in this behalf was legitimate. The argument of the State's attorney looking to a conviction on the grounds that defendant should not be turned loose "to destroy the pure womanhood of St. Francois County," while irregular, was not sufficiently prejudicial to call for reversal of the case. State v. Murray, 292 S.W. 434; State v. Marshall, 297 S.W. 63; State v. Williams, 274 S.W. 427; State v. Baker, 246 Mo. 357; State v. Hewitt, 259 S.W. 780.
The appellant and one Robert Downs were jointly charged by information in the Circuit Court of St. Francois County with an assault with intent to commit a rape. Downs applied for and was granted a change of venue from St. Francois County. No application therefor was made by the appellant. The day succeeding the granting of a change of venue to Downs the appellant was arraigned and upon his refusal to plead the court ordered a plea of not guilty to be entered in his behalf, a trial to a jury was had, the appellant was found guilty and his punishment assessed at five years' imprisonment in the penitentiary. From this judgment he appeals.
The prosecutrix was eighteen years of age and lived with her father and mother in the village of Esther in St. Francois County. She had known the appellant Greer about two years. At about 5:30 P. M., on the 20th day of February, 1927, she was playing ball in front of her father's house when appellant and Robert Downs came by in a Ford touring car. She had not previously known Downs. Apellant invited her to go riding with them. She refused, saying that she would not go with both of them. Whereupon appellant said that he would take Downs to his girl's home and they left. About ten or fifteen minutes later appellant returned and asked the girl if she was ready to go. Replying in the affirmative she got into the car and appellant drove over country roads for some time. Coming to a narrow road he drove to an old abandoned mining shaft where he stopped his car. The girl had not seen Downs from the time he and Greer left her father's home until the appellant stopped his car at the old mining shaft. When they reached there, Downs appeared and grabbed her and pulled her out of the car. Appellant remained in the car but kept the engine running rapidly while Downs threw the girl to the ground a few yards from the car. The girl screamed, hollowed and fought Downs while the appellant sat in the car and ran the engine for at least twenty minutes. Appellant made no effort to prevent or stop the assault Downs was making upon the girl. Aside from screaming she slapped and fought Downs and begged him to let her alone. Downs from time to time held his hand over her mouth and put his hands under her clothing and tore her bloomers off. The ground where the two were struggling was muddy. There was mud on the back of prosecutrix' cloak when she got up and her hair was full of dirt and mud.
While the assault was going on, two men, Boswell and Duncan, came upon the scene. Before they arrived appellant said to the girl: She refused to get into the car. Appellant then called to Downs and they got into the car and conversed in low tones. They started to drive their car past the car in which Boswell and Duncan had approached the scene of the assault. Boswell and Duncan stopped them, and asked the prosecutrix what was happening and she told them: "Those boys were trying to make me come across." Neither Downs nor appellant made any reply to the accusation. The girl got into Boswell's and Duncan's car, and they took her to the office of a justice of the peace at Flat River.
Duncan testified that at about seven o'clock in the evening of February 20, 1927, he heard distressing screams and the following words: and between those words one scream after another. "They were piercing screams." He also heard an automobile engine running as if it was being raced. The screams and outcries and noise from the engine seemed to come from the south. After telephoning a constable, Duncan, in company with three other men, started in the direction from which the screams were coming. They were overtaken by Constable Boswell, who was also going towards the scene. When they reached the scene Duncan saw Downs and the appellant sitting in a Ford touring car. Appellant was at the wheel and Downs was in the seat at his side. He next saw the prosecutrix who was approaching from the rear of the car in which appellant and Downs were seated. The girl's hair was dishevelled, and she seemed in an excited state of mind, and was getting her breath short and trembling. She had no hat on. The place where they came upon the car of the appellant was in a secluded spot, no dwelling houses being thereabouts.
At the close of the State's testimony appellant offered an instruction in the nature of a demurrer to the evidence which was overruled by the court and appellant stood upon his demurrer.
I. It is contended that the court erred in requiring the appellant, who had been jointly charged with Downs, to be tried alone. The record shows that upon the application of the latter he had been granted a change of venue. After that order had been made the appellant, who did not join in the application, was tried and convicted as set forth in the statement of the facts.
The court did not err in thus proceeding, but conformed to the requirements of the statute (Sec. 3990, R. S. 1919), which provides:
"Where there are several defendants in any indictment or criminal prosecution and the cause of the removal thereon exists only as to part of them, the other defendants shall be tried and all...
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