State v. Harrison

• Decision Date: 23 February 1915
• Docket Number: No. 18625.,18625.
• Citation: 174 S.W. 57,263 Mo. 642
• Parties: STATE v. HARRISON.
• Court: Missouri Supreme Court

174 S.W. 57

263 Mo. 642

STATE v. HARRISON.

No. 18625.

Supreme Court of Missouri, Division No. 2.

February 23, 1915.

Appeal from Criminal Court, Zackson County; Ralph S. Latshaw, Judge.

Oscar Harrison was convicted of crime, and he appeals. Affirmed.

Vic Gueringer, Thomas Kinevan, Leo Brennan, and defendant were jointly charged with the crime of rape upon one Gertrude Shidler, in Kansas City, Mo., on March 9, 1914. A severance was granted, and defendant was separately tried and convicted in the criminal court of Jackson county. He appeals from a judgment fixing his punishment at 24 years in the penitentiary.

The defendant in his brief relies for reversal upon the following alleged errors: (1) Insufficient evidence to sustain the conviction; (2) refusal of the trial court to quash the panel of petit jurors impaneled to try defendant; (3) rejection of proper evidence offered by defendant; (4) admission of improper evidence on the part of the state; and (5) improper remarks of the prosecuting attorney. These assignments will be considered in connection with the conclusions we have reached.

The evidence in substance is at follows: The crime was committed (if committed) in a room of the second floor al a two-story building at 1224 Grand avenue, in Kansas City. Said room was supplied with a strong table, a lounge, and several chairs. Some of the witnesses speak of this room as a "club room." One witness for defendant says be went there to gamble. Playing cards and poker chips were scattered around the room, and, under a fair inference, it may be classified as a gambling room. Adjoining or adjacent to this gambling room were one or two bedrooms and a room which had the appearance of a kitchen. Defendant admitted to a policeman that he lived at this place, but there is some evidence that man named Morgan was the proprietor thereof. The entrance to the second story of this building is an ordinary stairway. At the landing of the stairway is a door which opens into a hallway about 70 feet long. This hallway is lighted by a window in the rear end thereof and from the front door, which is partly glass. The gambling room is lighted by a skylight and can be entered by a door in the hallway or through the door of another room. The testimony of prosecutrix runs as follows: She is 28 years old, by occupation a nurse, and for several months prior to March 9, 1914, she had been following that line of work. She had frequently appeared upon the streets of Kansas City dressed as a nurse. In that garb, she had, some months prior to the day of the alleged assault, attended a picture show operated by one Gueringer, who is a co-indictee of defendant in this cause, though it does not appear that any of the defendants had any personal acquaintance with prosecutrix before the day of the assault. She further testified that about 5:15 p. m. on March 9, 1914, she visited the office of one Dr. Tucker to procure treatment for a threatened attack of pneumonia. On leaving Dr. Tucker's office, she was accosted upon the street by one Maurice Lewkowitz, who asked her if she was a nurse. She replied that she was, whereupon Lewkowitz told her that Dr. Schwartz, at 1224 Grand avenue, wanted to see her `at once about nursing one of his patients. At Lewkowitz's suggestion, she went with him to 1224 Grand avenue. When they had reached the second floor of that building, Lewkowitz told her to go into a room in said building which was uncarpeted and almost barren of furniture. She remarked to Lewkowitz that it did not appear to be a doctor's office, whereupon he requested her to step into the next room. When they entered that room, Lewkowitz told her that he was Dr. Schwartz and solicited her to have sexual intercourse with him. She refused his request and tried to leave the room, but found the door through which she had entered closed and locked. She states that Lewkowitz then went into another room, or out into the hallway, and almost immediately returned with defendant, Vic Gueringer, and two or three other men. When these men entered, she screamed for help, and Gueringer told her that he was an officer. Thereupon she ran to Gueringer for protection, and he caught hold of her and pulled her down across a table. One of the men brought in a rope and spoke about tying prosecutrix, but another man present said that there were enough of them to hold her without using a rope. After pulling her down across the table, defendant Harrison held her shoulders while three of his associates had "intercourse" with her, and Gueringer then had "intercourse" with her through her rectum, causing her great pain. After thus committing sodomy upon her, said Gueringer came around the table, and, threatening to kill her with a pistol if she further resisted, placed his sexual organ in her mouth. At this point prosecutrix lost consciousness and does not know what transpired until some one `threw water on her face. Upon regaining consciousness, she did not see any one, but heard some men cursing. She discovered that the door leading to the hallway had been left unlocked, and she ran out into the hallway, where she saw some men towards the front door. She then ran back to the window at the rear of the hallway and jumped out onto the roof of another building. While on said roof defendant came out there and took hold of her sleeve and tried to pull her back into the building where she had been mistreated. She jerked loose from him and remained on the roof until rescued by a policeman. One of her sleeves was torn. Prosecutrix further testified that while she was being mistreated in the gambling room she cried, screamed, and did everything in her power to escape from defendant and his associates. All the evidence is to the effect that after going out on the roof she screamed very loudly and appeared to be greatly excited and frightened. A woman who was working in a store beneath the gambling room testified that she heard a woman scream twice overhead, and a few seconds later saw prosecutrix out on the roof calling for help. A crowd soon gathered in the alley near the building upon which prosecutrix was standing.

One Fred McNulty, who was in the alley, testified that he saw defendant come out on the roof and take hold of prosecutrix, and heard him say to her, "Come ha here, you silly s___ o___ b___"; that she jerked away from defendant and continued to scream for help. McNulty testified that this occurred about the hour of 6 p. m., and that it was real light, and he recognized the defendant, having seen him before in the "Green Duck" pool hall.

Charles Kearns, who was in a building across the alley from where prosecutrix appeared on the roof, testified that he saw defendant come out on the roof and take hold of prosecutrix; that he hallooed at defendant to turn her loose, and he did so and went back into the building where the alleged crime was committed. Kearns also testified that prosecutrix was greatly excited; that she threw her hat, coat, and pocketbook down into the alley, and seemed to be preparing to jump from the roof, when some one warned her not to jump.

About 6:15 p. m. two policeman arrived, and one of them took prosecutrix from the roof. She immediately made complaint to the policeman that she had been ravished, but he failed to find defendant or any of his associates in the building where the alleged crime was committed. After being rescued from the roof, prosecutrix was immediately taken to a police station, and from there to a hospital, where two physicians made a physical examination of her. Said physicians testified that when brought to the hospital her rectum was bleeding from two lacerations each about an inch in length.

Prosecutrix identified defendant most positively as the man who held her shoulders on the table while Gueringer and others were mistreating her.

The policeman who examined the gambling room a short time after the alleged assault stated that he found a stove and two chairs overturned; that the cloth on the table was wet and "wrinkled up." He further noticed that water had been spilled on the floor of said room where the aforesaid table stood.

Three witnesses who saw prosecutrix on the roof testified that they did not see defendant touch her. It does not clearly appear that prosecutrix was in view of these witnesses all the time she was on the roof A woman who picked up the pocketbook which prosecutrix threw into the alley testified that it contained only 65 cents.

Defendant was arrested near Twelfth street and Grand avenue about 9 p. m. on the day of the alleged assault. When first taken into custody, he stated to the officer that he had been attending a picture show at Twelfth and Troost and did not live at 1224 Grand avenue. After being reminded by the arresting officer that the latter had seen him at 1224 Grand avenue, defendant admitted that he lived there.

On cross-examination prosecutrix testified: That she had resided in Kansas City about two years. Prior to that date she lived in Terre Haute, Ind., where she was twice married to one Clyde Shidler, and twice divorced from him. Three children were born of these marriages, which children at the time of the trial of this case were living with their father in Indiana. When she first came to Kansas City, prosecutrix brought two of her children with her. She admitted that she lived in a state of adultery for several months with a young man by the name of Raymond Ausherman, with whom she became acquainted while nursing his grandmother in Indiana. She further testified that while living on a farm in Indiana she was ravished by her father-in-law, a minister of the gospel; that said assault caused her to miscarry, but she did not prefer any criminal charge against her father-in-law; that at the instance of her father she collected $400 from her father-in-law in settlement of her injuries.

Raymond Ausherman, with whom prosecutrix lived in adultery, was serving a jail sentence for...