State v. Headley

• Decision Date: 14 December 1909
• Citation: 123 S.W. 577
• Parties: STATE v. HEADLEY.
• Court: Missouri Supreme Court

123 S.W. 577

STATE v. HEADLEY.

Supreme Court of Missouri, Division No. 2.

December 14, 1909.

1. RAPE (§ 51) — PENETRATION — EVIDENCE.

In a prosecution for rape, evidence held not to show penetration.

2. RAPE (§ 59) — INSTRUCTIONS.

In a prosecution for rape, where the evidence did not show penetration, a charge that, if accused did feloniously and unlawfully make an assault upon prosecutrix with the felonious intent then and there unlawfully and feloniously to ravish and carnally know and abuse her, he should be convicted of assault with intent to ravish, was proper.

3. RAPE (§ 59) — INSTRUCTIONS.

A charge that to convict accused of rape as charged in the information the evidence must show that there was actual penetration of the female organs of prosecutrix by the male organs of accused, and, where there was no testimony tending to prove such penetration, accused could only be convicted of assault with intent to ravish, was proper.

4. CRIMINAL LAW (§ 1153) — WITNESSES (§ 40) — COMPETENCY — CHILDREN — DISCRETION OF JUDGE — REVIEW.

In view of Rev. St. 1899, § 4659, subd. 2 (Ann. St. 1906, p. 2539), providing that a child under 10 years of age, who appears incapable of receiving just impressions of the facts respecting which he is examined, or of relating them truly, is incompetent, the judge must in each case determine the competency of an infant as a witness, and his decision will not be reviewed in the absence of a clear abuse of judicial discretion.

5. RAPE (§ 53) — ASSAULT WITH INTENT TO RAPE — EVIDENCE.

Evidence held to support a conviction of assault with intent to rape.

6. RAPE (§ 59) — INSTRUCTIONS — COMMON ASSAULT.

In a rape case, where, under the evidence, if accused was guilty of any offense, he was guilty of an assault with intent to rape, a charge on common assault was properly refused.

Appeal from Criminal Court, Jackson County; Wm. H. Wallace, Judge.

Walter Headley was convicted of rape, and he appeals. Affirmed.

The defendant in this cause was convicted upon an information, duly verified, filed in the criminal court of Jackson county on the 5th day of August, 1908, by the prosecuting attorney of said county, charging that the defendant on the 4th day of July, 1908, at the county of Jackson and state of Missouri, in and upon one Eunice Swift, a female child under the age of 14 years, to wit, of the age of 5 years, unlawfully and feloniously did make an assault, and her, the said Eunice Swift, then and there unlawfully and feloniously did carnally know and abuse, against the peace and dignity of the state. To this information the defendant entered his plea of not guilty, and a trial of this cause was had on the 21st day of September following.

The evidence developed upon the trial of this cause upon the part of the state substantially tended to show that the prosecutrix, Eunice Swift, resided with her parents at No. 1815 Kansas avenue, Kansas City, Mo., in the lower rooms of a two-story frame apartment building, and at the time of the trial was five years and seven months old. The upper story of this building was occupied by Mr. and Mrs. Kelso and their daughter, Ethel, age seven years. The crime, according to the evidence of the state, was committed about 5 o'clock in the afternoon of July 4th. At the time of his arrest, the defendant was employed by Browning-King as a stationary fireman. He had been an acquaintance of the Kelso family for about 12 or 14 years, and with his wife and family had been invited by the Kelso to their home to witness the display of fireworks on the evening of the 4th of July. Mr. Kelso, who was employed as a teamster, and the defendant met at a saloon on the morning of the 4th of July and had a few rounds of drinks together. At this meeting Kelso extended an invitation to the defendant to have dinner with him on that day. The defendant arrived at the Kelso home about 1:30 in the afternoon; Mr. Kelso arriving between 2 and 3 o'clock. After their arrival at the Kelso home, two or three cans of beer were drunk by them before dinner; dinner being served about 4 o'clock. Kelso, being some what under the influence of liquor, retired upon a bed in the dining room during or just after the meal. After dinner the prosecutrix and the Kelso child were playing on the front porch upstairs in a hammock. On the invitation of Mrs. Swift, Mrs. Kelso went downstairs, leaving her husband on the bed asleep, or at least in a stupor, and the defendant in the dining room.

Mrs. Kelso testified that she was away not exceeding 10 minutes, when her daughter, Ethel ran downstairs. The mother of prosecutrix testified that "Ethel had a very scared expression on her face," and, upon inquiry being made by her of the Kelso child as to the whereabouts of the prosecutrix, Ethel replied "that she was upstairs and commenced crying." Mrs. Swift testified that she immediately ran through the house and called to the prosecutrix two or three times, and that her daughter answered her from the head of the stairs, having just come out of the dining room where the defendant was. This witness testified that her daughter "was badly scared and crying," and told her "that the man had put his fingers away up, and she showed me where." Both Mrs. Swift and Mrs. Kelso testified that the defendant "was very nervous, white looking, scared, and trembling all over," and, when accused by Mrs. Kelso of having abused the prosecutrix, the defendant replied: "Just wait a minute, Jessie. Just wait a minute. Let me explain." The defendant was forced out of the house by Mrs. Kelso and Mrs. Swift; Mrs. Kelso following him out onto the sidewalk, where he was arrested by a police officer and taken to the police station. At the police station a vaseline bottle, containing a small amount of vaseline, and a pocketknife were found upon the person of the defendant. An examination of the prosecutrix disclosed that her private parts were lacerated, blood flowing from them, and that her underwear was bloody. It was also shown that the underwear of Ethel Kelso had traces of vaseline on it, and that vaseline was discernible on the skin of the Kelso child around and near her private parts.

The mother of the prosecutrix testified that between 2 and 3 o'clock in the afternoon of the commission of this offense she had given the prosecutrix a bath and dressed her, putting on clean underwear.

Mr. Kelso testified: That shortly after dinner he went to sleep on the bed in the dining room; that his wife was downstairs with Mrs. Swift; that he was asleep about a half or three quarters of an hour; that he was awakened by his little girl; that she was pale and said "that she was hurt. She said that he tried to hurt her."

The defendant objected to the introduction of the testimony of Eunice Swift, the prosecutrix, on the ground that she was incompetent as a witness on account of her youth. The record discloses that, before this witness was permitted to testify, the learned trial judge examined her thoroughly touching her competency as a witness, and after such examination overruled defendant's objection, to which he excepted. While the record disclosing the testimony of this witness shows some childlike misstatements or discrepancies as to the exact time of the day of this occurrence, her evidence touching the commission of this offense shows that she was an intelligent child for her age. Among other questions propounded to this witness, and her answers thereto, were the following: "Q. Do you know Walter Headley? A. Yes, sir. Q. Did you ever see him before? A. No. I saw him once. Q. You saw him once? A. Yes, sir. Q. What did he do to you? A. He take something out of his pocket and put it away up. Q. Away up? A. Away up here (indicating). Q. Under your clothing? A. Yes, sir. Q. How many times did he put his hands away up there? A. Four times (indicating with fingers). Q. How many is that? A. That is four. Q. Where was he when he did this? A. He was right in the bedroom where Mr. Kelso was sleeping, where Mr. Kelso was lying down. Q. Who was sleeping? A. Mr. Kelso. Q. Where was he sleeping? A. On the bed. Q. Was he asleep? A. Yes." This witness then testified: That Ethel Kelso was in the room. That Ethel tried to and did get away from defendant and then went downstairs. "Q. Then where did you go? A. He just went up there. Q. Did you see your mamma? A. Yes, sir. Q. When did she go up there? A. Her never come up there. Her called me. Q. What did you do when she called you? A. I got away. I got to the stairs. Q. You went to the stairs? A. Yes, sir. Q. Then what did you do? A. I go downstairs. Q. Did you have on your panties? A. Yes, sir. Q. Where did this man put his hand? A. His fingers away up there (indicating under her skirt). Q. On which side of your panties, the outside or the inside? A. Outside. Q. What was it that he had on his hands? A. Salve. Q. Where did he get it? A. Upstairs on Mrs. Kelso's dresser." On cross-examination this witness stated: That after dinner she was cleaning up and went upstairs; that the first time she saw the defendant that day he was sitting at the table eating; that she and Ethel Kelso were sitting on the defendant's knees; and that he was bouncing them up and down. She again stated: That defendant took salve out of his pocket and stuck his fingers away up under her dress, and when he did this she said to him, "Let me alone"; that she remained there awhile longer; that he again punched her away up on her leg; and that it hurt her.

The testimony of Ethel Kelso, the little playmate of the prosecutrix, was a corroboration of that given by the prosecutrix. She testified that the defendant called to her to get on his lap, and that when she did so he put the prosecutrix down, and, taking a bottle of vaseline out of his pocket, dropped some of it on his fingers, raised her dress, and stuck his fingers under her clothing. She testified that she did not see what the defendant did to the prosecutrix. She stated...