State v. Gurnee

• Decision Date: 05 June 1925
• Docket Number: No. 26132.,26132.
• Citation: 274 S.W. 58
• Parties: STATE v. GURNEE
• Court: Missouri Supreme Court

274 S.W. 58

STATE v. GURNEE

No. 26132.

Supreme Court of Missouri, Division No. 2.

June 5, 1925.

Appeal from Circuit Court, Jackson County; J. H. Austin, Judge.

Everett M. Gurnee was convicted of crime against nature, and appeals. Affirmed.

Ernest Poindexter, of Kansas City, for appellant.

Robert W. Otto, Atty. Gen., and Harry L. Thomas, Sp. Asst. Atty Gen., for the State.

DAVID E. BLAIR, J.

Defendant was convicted, in the circuit court of Jackson county, of the detestable and abominable crime against nature. The jury assessed his punishment at imprisonment in the state penitentiary for a term of two years. From the judgment entered upon such verdict, he has appealed.

The defendant was a widower, living in Kansas City with his two daughters and son and a housekeeper and her two little girls. Helen was the oldest child of defendant, and was 14 years of age. The ages of Viola May and Albert were given as 12 years. However, defendant gave Viola May's age as 11 years, and she was probably younger than Albert.

Defendant was a carpenter and shingling contractor. His wife died in October, 1918. For a time after her death the maternal grandmother, Mrs. Rude, kept the children. They were also kept for a while at the home of defendant's brother. They were frequently at Mrs. Rude's for short visits.

Defendant testified, and there is other evidence of the same sort, that his wife's mother objected to his marriage, and had ever afterward borne ill will toward him. The children were more fond of their grandmother and her husband, their step-grandfather, than they were of the defendant. It also appears that the two younger children disliked defendant's housekeeper, and would not obey her and their reported disobedience resulted in punishment at defendant's hands. A neighbor, Mrs. Bibbs, washed and sewed for defendant and his children, and they were fond of her. It seems that defendant objected to Albert and Viola May going to Mrs. Bibbs' house and going with her to moving picture shows. There was some proof offered to the effect that Mrs. Bibbs' reputation for morality was bad. Because of ill feeling between defendant and his mothers-in-law, she communicated with Mrs. Bibbs as to the welfare of defendant's children, instead of calling defendant on the telephone and talking to him. Defendant apparently resented this.

The foregoing facts have been recited to show the feelings of the parties and the setting of the alleged crime. Most of the testimony, covering about 125 typewritten pages, was devoted to the state of feelings existing between the defendant and his housekeeper on the one hand and Grandmother Rude and her husband on the other and the preferences of the children.

Defendant had purchased a lot and erected a house at 5412 East Twenty-Seventh street in Kansas City two or three years prior to the alleged commission of the crime. During the winter of 1923-1924, his housekeeper was Mrs. Rose Crawford, a widow with two small children. Mrs. Crawford and her children occupied a bedroom at the northwest corner of the first floor of the house, and defendant slept in the southwest bedroom on the same floor. Defendant's two daughters and his son, Albert, slept upstairs on the sleeping porch. Because of the scarcity of bed covering, defendant had Albert come down stairs and sleep with him about January 1st, in order that the two girls might have his bed covering. It was during the time between January 1st and the middle of March, 1924, that it is claimed the various acts were committed. Albert testified that the act was committed about fifteen times. The act charged in the indictment was alleged to have been committed on or about February 15, 1924.

Albert testified positively, and was not shaken upon cross-examination, that his father, the defendant, compelled him to submit to the act, the indecent details of which need not be recited. This was denied by defendant just as positively. In attempted corroboration of Albert, the youngest child, Viola May, testified that she looked through the keyhole in the door of her father's bedroom and saw the act committed. Much testimony was offered tending to show the impossibility of the bed being seen by one looking through the keyhole, because of the position of the bed in the bedroom. While the implication is strong that the act was committed while defendant and his son were upon the bed, we have carefully read the testimony, in view of the state's contention that there, is no direct testimony that the act was committed on the bed, and fail to find any clear or direct testimony to that effect. The defendant offered several witnesses who testified that he bore a good reputation for truth and veracity and general morality. No countervailing evidence upon that subject was offered by the state.

I. The first contention made by defendant is that the evidence was insufficient to support the verdict of guilt. It is apparent from the foregoing statement of facts that the testimony of Albert Gurnee was entirely sufficient to make a case for the jury.

Counsel seems to think that no case for the jury was made because, as he contends, and as the testimony tends to show, it would have been a physical impossibility for Viola May Gurnee, by looking through the keyhole, to have seen the act committed upon the bed. If her testimony had been all the testimony as to the commission of the act, there might be some basis for this contention. However, we do not understand that it was necessary for the testimony of Albert Gurnee, the unwilling victim, to be corroborated. The testimony shows that he did not willingly yield to defendant, and he was therefore not an accomplice, and corroboration of his testimony was not required. State v. Wilkins, 221 Mo. 444, loc. cit. 450, 120 S. W. 22, and cases cited.

Where the person, upon whom the crime against nature is perpetrated, consents to and willingly participates in the act, such person is an accomplice. This situation has doubtless given rise to the rule announced in the cases holding that there must be corroboration. Medis & Hill v. State, 27 Tex. App. 194, 11 S. W. 112, 11 Am. St. Rep. 192; People v. Desehessere, 69 App. Div. 217, 74 N. Y. S. 761; Commonwealth v. Snow, 111 Mass. 411. See, also, note to Kelly v. People, 192 Ill. 119, 61 N. E. 425, found in 85 Am. St. Rep. at page 326, and Kelley's Crim. Law & Proc. (3d Ed.) § 936. But, where the victim does not consent, he is not an accomplice to the commission of the crime, and a conviction may be supported upon his uncorroborated testimony. The assignment is overruled.

II. Error is assigned because the trial court permitted the prosecuting attorney to ask witnesses, who testified concerning defendant's good character, whether they had heard "rumors to the effect that this defendant had compelled his other children to do what he compelled Albert Gurnee to do."

We have very recently been over this question in State v. Mart Cooper (Mo. Sup.) 271 S. W. 471 No. 25785 (decided March 19, 1925, and not yet [officially] reported). We there cited State v. Parker, 172 Mo. loc. cit. 207, 72 S. W. 650, State v. Harris, 209 Mo. loc. cit. 443, 108 S. W. 28, State v. Phillips, 233 Mo. loc. cit. 305, 135 S. W. 4, and State v. Seay, 282 Mo. loc. cit. 676, 222 S. W. 427, and said:

"We recognize the rule that it is not permissible for the state to make proof of independent crimes of the defendant, which seems to be the controlling feature of the cases relied upon by defendant. But the rule is well established that defendant's character witnesses may be asked about reports and rumors of misconduct which, if true, would tend to show that defendant's reputation for morality was not good, even if such testimony does have the effect of putting defendant before the jury in the light of being the author of crimes other than the one charged in the information."

Counsel for defendant in his brief said:

"A careful reading of the Cooper Case drives one to the conclusion that the Cooper Case upholds the principle that rumors must be current and afloat, and there is not a single thing in the entire record that even hints at any rumors or that defendant had not led a blameless life. Rumors were afloat in the Cooper Case. In the Gurnee Case before the court there were no rumors, and it all was in the mind of the prosecuting attorney, and the jury evidently concluded the prosecuting attorney had information personally and not in evidence."

Neither the Cooper Case nor any of the cases therein cited made it a prerequisite that rumors must actually have been afloat. It would clearly be improper to make any of such proof prior to the asking of such question, or at any other time. The theory advanced by defendant would make the propriety of asking character witnesses about rumors concerning a defendant on trial, which would tend to show that he did not possess a good reputation, depend upon the character of the answers made by the witnesses. In other words, if the witness answered that he had heard such rumors, then no error would have been committed by the court in permitting the question to be asked and in requiring it to be answered; but, if the question be answered in the negative, the court committed reversible...