State v. Hamilton

• Citation: 304 Mo. 19,263 S.W. 127
• Decision Date: 05 June 1924
• Docket Number: No. 25345.,25345.
• Parties: STATE v. HAMILTON
• Court: United States State Supreme Court of Missouri

263 S.W. 127

304 Mo. 19

STATE v. HAMILTON

No. 25345.

Supreme Court of Missouri, Division No. 2.

June 5, 1924.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Harry Hamilton was convicted of rape, and appeals. Affirmed.

William E. Fish and Roy A. Fish, both of St. Louis, for appellant.

Jesse W. Barrett, Atty. Gen., and Robert W. Otto, Asst. Atty. Gen., for the State.

Statement.

BAILEY, C.

On June 2, 1923, the grand jury of the city of St. Louis, Mo., returned into the circuit court of said city, an indictment, charging appellant, Hamilton, with statutory rape on Bessie Carter, a female child under the age of 16 years, in the city of St. Louis aforesaid. The indictment further charges that said defendant did unlawfully and feloniously make an assault on said Bessie Carter, and then and there unlawfully and feloniously did carnally know and abuse her. The defendant was formally arraigned, and entered a plea of not guilty.

The case was tried before a jury on June 26, 1923, and on the same day the following verdict was returned:

"We, the jury in the above-entitled cause, find the defendant guilt of rape, as charged in the indictment, and assess the punishment at imprisonment in the penitentiary for (10) years.

"Albert Siepman, Foreman."

A motion for a new trial was filed and overruled. Thereafter, allocation was granted defendant, the motion for a new trial overruled, judgment rendered sentence pronounced in accordance with the terms of the verdict and an appeal was granted said defendant to this court.

The evidence on behalf of the state tends to show that Bessie Carter, an unmarried female of the age of 15 years, on October 29, 1922, was living with her mother at Alton, III.; that she met the defendant, 1-Tarry Hamilton, about September or October, 1922, and continued to meet him thereafter on occasions when she would happen to go down town; that on March 31, 192.3, she accompanied the defendant to St. Louis, Mo., arriving at the latter place about 10 o'clock at night; that the defendant took her to the Portola Hotel in said city on said night, and registered as "Mr. and Mrs. Thocker"; that they were assigned to room 18 in said hotel; that, after arriving at said room, defendant insisted on Bessie Carter going to bed, which she did; that during the night the prosecutrix awakened found the defendant undressed and lying beside her in bed; that during the night defendant "did something to her"; that while defendant was on top of her she felt something in her private parts, but did not know that it was defendant's private parts; that she testified before the grand jury "defendant woke her, and had intercourse with her"; that on cross-examination she testified, she did not know "if what she felt in her private parts was the private parts of the defendant or his finger"; that about 3:30 in the morning of April 1st a police officer knocked at the door of room 18, where she had stayed, and was admitted by the defendant, or by use of a pass key; that defendant gave his correct name to said officer, and prosecutrix gave her correct name; that when the police officer entered said room the defendant was dressed in his underwear, and when asked who the prosecutrix was stated she was nis sister.

The prosecutrix was further interrogated as to her testimony before the grand jury as follows;

"Q. Were you asked, `Did he put his private parts in yours?' A. Yes, sir.

"Q. Do you remember how you answered it? A. yes, sir.

"The Court: Do you remember now that he did or not? A. Yes, sir.

"Mr. Johnston: 4 Do you remember, did you bleed any that night? A. No, sir.

"Q. Did it hurt you? A. Yes, sir. .

"Q. Where did you hurt—in your private parts? A. Yes, sir."

Defendant's evidence is substantially as follows: That Bessie Carter lived with her mother in Alton, Ill.; that the mother had known defendant since December 1, 1922, and that he frequently called at her home; that he (defendant) asked the mother for permission to marry Bessie Carter, the prosecutrix, and the mother consented to the marriage; that defendant and prosecutrix came to St. Louis for the purpose of being married; that defendant took prosecutrix to the Portola Hotel upon arriving at St. Louis about 10 o'clock at night; that after their arrival defendant and prosecutrix went to the City Hall to obtain a marriage license, but found the building closed; that he registered under the assumed name of Thocker for himself and prosecutrix; that they then went up stairs to room 18, and Bessie Carter went to bed first; that she did not take off any of her clothing except her shoes. Defendant testified that he did not take off any of his clothes, but just laid down on the bed with his clothes on; that he loved the prosecutrix, expected to marry her, and was still willing to marry her; that he did not have intercourse with prosecutrix, nor touch her, that night.

The remaining questions presented by the record will be considered in the opinion.

Opinion.

I. Appellant in his brief makes but two assignments of error as follows:

"First. The court should have sustained the motion for a new trial, as the verdict was against the weight of evidence."

This court from its earliest history to the present time has held with marked unanimity that in actions at law brought here by appeal it will not pass upon the weight of the evidence before the jury, except in so far as to determine in a case of this character whether the verdict of the jury is supported by substantial evidence. Burtch v. Ity. Co. (Mo. Sup.) 236 S. W. loc. cit. 340; Barnett v. Hastain (Mo. Sup.) 256 S. W. loc. cit. 752, and cases cited. The appellant interposed no demurrer to the evidence at the conclusion of either the state's case or at the conclusion of the whole case. He does not allege in his assignment of errors that the trial court should have directed a verdict of acquittal. He simply asserts that his motion for a new trial should have been sustained, because it charges that the evidence failed to show the male organ of defendant penetrated the female organ of prosecutrix. Having carefully read the' entire record and briefs in the case, we will consider the above assignment as though the question involved therein was properly presented for our consideration.

In considering the testimony relating to the subject of penetration, we should keep in mind the facts as they were presented to the jury. The prosecutrix was the first witness put upon the stand by the state, and, after testifying that her name was Bessie Carter, and that she lived at Alton, Ill., here is what her counsel, also representing the defendant herein, said to the court and jury:

"Mr. Fish: if the court pleases, we want to make a short statement. The mother of this girl and the father of this girl have retained me as her attorney, to defend her in the juvenile court, and also in the United States court, where a charge on the Mann Act is pending against the prosecuting witness and the defendant, and as her attorney I want to now advise her of her constitutional rights; that is, that she doesn't have to testify here in this case unless she wants to; that she claims her constitutional rights, on the ground that anything she said here might incriminate her in some other court; and that she does not have to testify at this time unless she wants to testify, and can refuse to testify in this case. * * *

"Mr. Fish: Q You understand, Bessie, if you don't want to testify you don't have to. * * *

"Mr. Fish: I am her attorney, and acquainting her with her constituronal rights, and of course she can do as she pleases."

The witness continued her testimony heretofore set out, without claiming any personal privilege. The jury had the right to consider the above suggestions of Mr Fish in determining whether the prosecutrix told the whole truth in regard to penetration, when she was in bed with defendant, in a darkened room, with the defendant on top of her with his finger or penis in her female organ, etc.

Why did the defendant and prosecutrix leave Alton, a city of 25,000 inhabitants, after night, and come to St Louis, when they could have married at Alton, and saved the mother of the girl the trouble and expense of coming to St Louis to witness the wedding? Why did they go to the city hall at 10 o'clock at night for a marriage license, when they must have known that said build ing would be closed? Why did the defendant register himself and the girl as husband and wife under an assumed name? Why did the defendant, when caught by the police officer in the room with the girl, and with his clothes off, tell the officer that Bessie Carter was his sister? What was there to prevent the defendant from having sexual intercourse with prosecutrix under the circumstances aforesaid, when he was on top of her, in position to perform the operation, without any resistance being offered by the girl, although she knew her private parts were being injured by defendant and were causing her pain? We are of the opinion that the foregoing facts and circumstances warranted the jury in finding that defendant, on the night of March 31, 1923, had sexual intercourse with the prosecutrix, Bessie Carter, in St. Louis, Mo. Proof of penetration may be shown by circumstantial evidence, and slight proof of actual penetration is sufficient. 22 Ruling Case Law, § 7, p. 1177; State v. Devorss, 221 Mo. 469, 120 S. W. 75; State v. Williams, 263. Mo. loc. cit. 608, 173 S. W. loc. cit. 1052; Taylor v. State, 111 Ind. 279, 12 N. E. 400, People v. Crowley, 102 N. Y. 234, 6 N. E. 384; State v. Hargrave, 65 N. C. 466; State v. Depoister, 21 Nev. 107 25 Pile. 1000; Hale v. Commonwealth, 196 Ky. 44, 244 S. W. loc. cit. 79; State v. McGrath (S. D.) 193 N. W. loc. cit. 602; People v. Bernor, 115 Mich. 692, 74 N. W. 184; State v. Carnagy, 108 Iowa, 483, 76 N. W. 805; State v. Mason. 152 Minn. 306, 189 N. W. loc. cit. 453; Kenney v. State (Tex. Cr. App.) 79 S. W. 817, 65 L. R....