State v. Headley
| Decision Date | 04 June 1929 |
| Docket Number | No. 29525.,29525. |
| Citation | 18 S.W.2d 37 |
| Parties | STATE v. HEADLEY. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Holt County; Guy B. Park, Judge.
Orloff Headley was convicted of rape, and he appeals. Affirmed.
Jno. E. Heffley, of St. Joseph, for appellant.
Stratton Shartel, Atty. Gen., and Don Purteet, Asst. Atty. Gen., for the State.
In an information filed in the circuit court of Holt county, the defendant was charged with rape in and upon a certain female child under the age of 16 years. The jury returned a verdict finding defendant guilty as charged, and assessed his punishment at imprisonment in the penitentiary for a term of five years. Defendant appealed from the judgment entered on the verdict.
The evidence adduced in behalf of the state warrants the finding that Dorothy ____, prosecutrix, was born July 30, 1911, and that defendant sustained sexual intercourse with her probably on July 25, 1927, the date charged in the information. She lived with her father and two younger brothers in Holt county on a farm, located about a mile and a quarter east of the town of Oregon. Defendant, a married man, between 36 and 38 years of age, lived on a farm at his mother's home, about a half mile from the home of the prosecutrix. An unoccupied tenant house on defendant's farm was situated about a quarter of a mile from the home of prosecutrix and also that of defendant. Prosecutrix had known defendant for about 4 years. In the fall of 1926, she was in her sophomore year, attending the Oregon high school. In September, 1926, defendant began paying her attention. He would meet her on the road, not far from school, and drive her home in his automobile. On one of these occasions, he clasped her in his arms and told her he loved her. Prosecutrix's mother died in October, 1926. Previous to the mother's death and subsequently, defendant came to the home frequently and on these occasions offered his sympathies to the prosecutrix.
Before going to live with his mother, defendant and his wife occupied the tenant house. It consisted of two rooms, and there had been left there a few articles of household furniture, including a bed. At the suggestion of defendant, prosecutrix met him at this house. The first visit probably occurred in January, 1927. He embraced her and kissed her and told her he loved her. These meetings at the tenant house continued at intervals of two or three weeks. It was in April, 1927, that defendant first had sexual intercourse with the prosecutrix. A similar occurrence took place in June. July 25, 1927, was defendant's birthday. Prosecutrix went to the tenant house and found defendant there. She stayed until about 2:30 in the morning, when defendant accompanied her home. Some time on this occasion in July while she was there, defendant had sexual intercourse with her. She stated positively that it occurred on July 25, 1927. All the visits of prosecutrix to the tenant house occurred during the nighttime. In June, 1927, the father of prosecutrix appeared at the tenant house, after midnight, while she was there, and accosted defendant, who came to the door, and inquired of him as to the whereabouts of his daughter. She hid behind the door, but defendant denied any knowledge of her presence. Defendant in his testimony admitted this occurrence, but said that his wife was present, and she corroborated him. He said that prosecutrix came in, saying her father had whipped her with a blacksnake whip. That defendant met and drove prosecutrix in his automobile, and that he was frequently at her home, is corroborated by other witnesses.
Defendant denied that he ever had sexual intercourse with the prosecutrix. His wife states that she was with him every night he spent at the tenant house. Defendant's evidence tended to show an alibi, to the effect that he was in the city of St. Joseph during the day on July 25, 1927, and that he did not return to his home until the evening of July 26, 1927, around 5 or 5:30 in the afternoon. Other witnesses tended to corroborate this testimony.
I. The counsel for defendant, who briefed and argued the cause in this court, did not represent defendant during the trial. He does not raise the question of the sufficiency of the evidence to sustain a conviction, for he understands the rule that substantial evidence of defendant's guilt renders the determination of the truth of the testimony a question of fact for the jury, and that it is not within the province of an appellate court to usurp the function of a jury by passing upon the truth of the evidence. However, the motion for a new trial raises the question, and we must rule on it. It is evident, though, that the state has made a submissible case, for the prosecutrix testified that defendant had sexual intercourse with her, and the evidence shows by a certified copy of her birth certificate that she was under the age of 16 years, thus rendering her incapable of consenting to an act of intercourse. The evidence developed substantial proof of guilt, and rendered the truth of the facts wholly within the province of the jury. It was sufficient to sustain the conviction.
II. Defendant was charged with an act of sexual intercourse committed with the prosecutrix on July 25, 1927. The court permitted the prosecutrix to testify to other acts of intercourse by defendant with her in April and June, 1927. It is charged that the court erred in failing to instruct the jury as to the legal effect of these other acts of intercourse, on the ground that section 4025, Revised Statutes 1919, requires the court to instruct on all the law of the case. We have said that the law of the case comprehends the elements of the offense charged as shown by the evidence. State v. Conrad (Mo. Sup.) 14 S.W. (2d) 608; State v. Decker (Mo. Sup.) 14 S.W. (2d) 617. All other matters are collateral. Relative to the law of the case, which involves the elements of the offense, it is the duty of the trial court to instruct with respect to it, and if it fails to do so and it is specifically complained of in the motion for a new trial, error may be successfully predicated on the failure. State v. Burrell, 298 Mo. 672, 252 S. W. 709. But where the matter involved is collateral, before defendant may complain, he must request an instruction on the subject. That an instruction involving the legal effect of other acts of intercourse relates to a collateral matter admits of no doubt. Other acts of intercourse did not involve the elements of the act or offense for which defendant was prosecuted. As defendant did not ask an instruction limiting the effect of the evidence, the trial court cannot be convicted of error in that regard, even though such an instruction would have been appropriate. State v. Conrad, supra; State v. English, 308 Mo. 695, 274 S. W. 470; State v. Marshall, 317 Mo. 413, 297 S. W. 63, loc. cit. 68. The same ruling applies to the assignment that the court failed to instruct the jury on the credibility of the witnesses.
III. It is said that the instruction on an alibi is erroneous. It reads: "The court instructs the jury that if there is any evidence before you that raises in your minds a reasonable doubt as to the presence of the defendant on July 26th, 1927, at the place where the crime is charged to have been committed (if you find a crime was committed), you will acquit the defendant."
The same instruction was commented upon in State v. Socwell, 318 Mo. 742, 300 S. W. 680, and held erroneous because it conflicted with another instruction given. The ruling, however, does not apply to the situation before us. Defendant contends that the instruction is vague, indefinite, and uncertain, and does not cover all the points of the alibi. It will be noted that the principal instruction proceeds upon the hypothesis that, if the jury believes from the evidence that defendant did, on July 26, 1927, carnally know prosecutrix, etc., they will find defendant guilty; and that the instruction on alibi instructs the jury to acquit the defendant if he was not present on July 26, 1927. This calls for a short summary of the apposite evidence.
The prosecutrix testified that these acts of intercourse occurred at night anywhere from 11 to 2:30 in the morning. She stated that the first act of sexual intercourse occurred in ...
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