State v. Higginbotham

• Citation: 72 S.W.2d 65,335 Mo. 102
• Decision Date: 17 May 1934
• Docket Number: 33388
• Parties: The State v. Van Higginbotham, Appellant
• Court: United States State Supreme Court of Missouri

72 S.W.2d 65

335 Mo. 102

The State v. Van Higginbotham, Appellant

No. 33388

Supreme Court of Missouri

May 17, 1934

Appeal from Polk Circuit Court; Hon. C. H. Skinker, Judge.

Affirmed.

Collins & Pierce and Everett Frieze for appellant.

(1) The State was permitted to ask the appellant's wife: "Q. Didn't you say (referring to appellant's wife) in that same conversation, didn't she say this: 'Now Van, if you had been at home where you should have been, I would have known you were innocent, and you would not have got into this trouble?' A. Yes sir." This was not only impeaching this witness on an immaterial matter but was using her conclusion as evidence against the appellant. State v. Aurentz, 263 S.W. 178; State v Nave, 222 S.W. 744; State v. Barker, 246 S.W 910. (2) In a charge of this kind, so easily made, and so difficult to obtain a trial free from passion and prejudice every safeguard of the law should be thrown about the defendant. Instruction A, requested by appellant, is a fair statement of the law under the facts in this case and the same is true with reference to requested Instructions B and C. And because Instruction C, requested by appellant, is the converse of the proposition set forth in Instruction 3, given for the State. State v. Ledbetter, 58 S.W.2d 453. (3) The admitted evidence against appellant that on the day of the alleged rape he was carrying about his person and in his automobile a pistol, was very prejudicial. It is a general rule of law that a distinct, unconnected crime with that laid in the indictment cannot be proved against the defendant. First Bishop Criminal Practice, sec. 1120; State v. Hyde, 234 Mo. 225. Of course, there are exceptions to the above rule, but this case does not fall within them. (4) The authorities cited under proposition I are applicable to proposition IV and permitting the opinion of appellant's wife to be used against him as evidence is all the more prejudicial and harmful because she was his wife. Such testimony was not only hearsay and an opinion and wholly immaterial but was in no way binding on the appellant and of itself should work the reversal of this case. Janis v. Jenkins, 58 S.W.2d 298.

Roy McKittrick, Attorney-General, and Frank W. Hayes, Assistant Attorney-General, for respondent.

(1) The general assignment of error No. 1 of defendant's motion for new trial is insufficient. Sec. 3735, R. S. 1929; State v. Francis, 52 S.W.2d 553; State v. Early, 49 S.W.2d 1060; State v. Miller, 300 S.W. 765; State v. Goldin, 51 S.W.2d 91; State v. Steelman, 300 S.W. 743; State v. Dilts, 191 Mo. 675. (2) The court did not err in permitting the prosecuting attorney to interrogate wife of defendant as to statements made in his presence and others, and in permitting proof that she made such statements by others in rebuttal. State v. Brockington, 36 S.W.2d 911; State v. Merricks, 18 S.W.2d 23; State v. Palmer, 5 S.W.2d 95; State v. Forsha, 190 Mo. 296; State v. Powell, 55 S.W.2d 334. (3) The court did not err in refusing defendant's Instructions A, B and C. Sec. 3735, R. S. 1929; State v. Standifer, 289 S.W. 856; State v. Gann, 72 Mo. 375; State v. Prunty, 208 S.W. 95; State v. Cook, 44 S.W.2d 92; State v. Heady, 289 S.W. 565; State v. Tracy, 243 S.W. 178; State v. Fike, 24 S.W.2d 1030; State v. Heinze, 45 Mo.App. 413; State v. Layton, 58 S.W.2d 454. (4) The court did not err in permitting the State to prove that defendant on September 24, 1932, in the city of Bolivar, had a pistol in his possession. State v. Williams, 183 S.W. 310; State v. Hawley, 51 S.W.2d 78. (5) The State made sufficient proof of penetration. State v. Bailey, 137 N.W. 352; State v. Hamilton, 263 S.W. 129; State v. Williams, 263 Mo. 608. (6) The court did not err in refusing a new trial on the ground that the verdict was a result of bias and prejudice, and that the punishment is cruel and unusual. State v. Maness, 19 S.W.2d 628.

OPINION

Ellison, P. J.

The defendant was convicted of rape in the Circuit Court of Polk County and his punishment assessed by the jury at imprisonment in the State penitentiary for fifteen years. He appeals complaining of the admission of incompetent and prejudicial evidence; of the refusal of certain instructions; of improper cross-examination of his wife by the assistant circuit attorney; and that the verdict was against the evidence and the result of passion and prejudice. The defense was an alibi.

The prosecuting witness, Althea Eidson, a widow thirty-seven years old, lived in the country in Polk County with her son, a boy eight years old. She testified that on the night of September 24, 1932, she retired about nine o'clock. Thereafter, sometime before midnight she was awakened by a low voice outside the house calling her by her first name. She thought something was wrong and asked what was wanted. The person answered: "You are wanted on the 'phone." Though uneasy and in doubt she went to the door. Through the glass she could see a man outside. He drew a revolver and threatened to blow up the house and to kill her if she didn't open the door, or if she screamed. She awakened her young son and the two in their night clothes went out of a door on the other side of the house. She directed the boy to run to the home of her brother-in-law and nearest neighbor, Floyd McKinney. She started in the opposite direction to another neighbor's, Charley Craig. She had got only a little distance when the man who had been at the door overtook her and threatened her with his revolver if she didn't stop and obey him or if she screamed.

The man's car was parked there and he ordered her to get in it. She didn't, and he put both arms around her and held her. They were face to face and she recognized the man as the defendant, Van Higginbotham. He lived some eight or nine miles south. He had drilled a well on her place about two years before. She hadn't known him prior to that time, and didn't say she had ever seen him afterward until the night of the ravishment. But she declared on the witness stand: "I recognized that man as the man that drilled my well, Van Higginbotham, just as plain as I can see him here; there is no doubt, when he did that, for I knew him right then." Also, in the course of a searching cross-examination covering thirty-seven pages of the record she asserted she was positive the man was the defendant. In answer to one question she declared "Yes, sir, I know it." And she described his clothing, saying he had on a pair of overalls, a dark coat and a felt hat.

Getting back to Mrs. Eidson's account of the ravishment, she said while the appellant was holding her she reached around for the revolver, which he had put in his hip pocket, but he thwarted her, seized the weapon and pressed it against her face. He forced her back into the house yard and was about to compel her to submit to him there when the lights of a car on the highway flashed on their faces. He then made her go around behind the house to a back porch where he overpowered her, causing her to fall and strike her head in such manner that she was stunned for a time. He held her down, striking her on the chest and abdomen, and accomplished his purpose, having sexual intercourse with her. Just about that time a car drove up in front of the house and someone called her several times. She broke away from the appellant, answered the persons in front saying, "What," and ran around to where they were. They proved to be her young son, her brother-in-law Floyd McKinney and her neighbors Charley Craig and Mrs. Craig. She was helped into the car and the defendant came running out to the fence, displaying his revolver. He said "Now, you drive, and I mean drive" -- and they did, going to the home of another neighbor, Tom Robinson.

This testimony was corroborated in part by Mr. McKinney and Mr. and Mrs. Craig. McKinney said he was called by his wife during the night and went out into his yard where he heard Mrs. Eidson's little boy crying as he ran up the road. The boy said "someone is killing mother." McKinney put the lad in his car and drove past the Eidson house to the Craig home where he aroused Mr. and Mrs. Craig and they all drove back to the Eidson home. Mr. Craig hollooed several times and Mrs. Eidson finally answered and came around the side of the house to where they were. In response to their inquiries as to what was the matter she said "he raped me." She said it was "a" Higginbotham -- she couldn't remember his first name, but it was the one who had dug her well. Mr. Craig helped her into the car. About that time a man came running out from the house to the fence. He said "You drive, and I mean drive." He had something in his hands that looked like a revolver. Mr. McKinney said he recognized the man as the defendant. Mr. and Mrs. Craig substantiated that part of the foregoing which occurred after they had joined Mr. McKinney, except that they did not recognize the man. They both knew the defendant; he had boarded at their house while he was boring Mrs. Eidson's well. But Mrs. Craig couldn't tell who the man was and Mr. Craig said he was on the opposite side of the automobile when the man came running up.

About the time Mrs. Eidson got in the car somebody suggested that they get the license number of the automobile of her assailant, which stood parked there. It was a Ford coupe, Model A, with a turtleback or closed lid in the rear. Both the men and Mrs. Eidson looked at the license number in the rear. It was bent at one end or corner and covered with mud. Also one or two of them noticed a sticker in the back window and some kind of an emblem attached to the license plate. They were unable to get the license number because the man who came out with the revolver drove them off before they had done so.

On their arrival at...