State v. Hobson

• Decision Date: 25 May 1915
• Docket Number: No. 13702.,13702.
• Citation: State v. Hobson, 177 S.W. 374 (Mo. 1915)
• Parties: STATE v. HOBSON.
• Court: Missouri Supreme Court

177 S.W. 374

STATE v.HOBSON.

No. 13702.

Supreme Court of Missouri, Division No. 2.

May 25, 1915.

Appeal from Circuit Court, Clinton County; Alonzo D. Burnes, Judge.

Joseph Hobson was convicted of statutory rape, and appeals.Reversed and remanded.

Defendant was convicted of committing statutory rape upon his 12 year old daughter, Bertha M. Hobson, and appeals from a judgment of the circuit court of Clinton county fixing his punishment at 15 years in the penitentiary.

The evidence of prosecutrix tends to prove that the alleged crime was committed on March 21, 1913, at the home of defendant, in Plattsburg, Clinton county, Mo., while his wife (the mother of prosecutrix) was temporarily away from home.

The prosecutrix says: That she, with defendant and a younger sister, about 10 years of age, were sleeping in the same bed; the younger sister occupying the middle of the bed.That during the night defendant compelled his younger daughter to get up and get on the outside of the bed, and made prosecutrix occupy the middle of the bed, where defendant forcibly had sexual intercourse with her; she crying and begging him to desist, and lie threatening violence if she told any one of his crime.The testimony of prosecutrix tends to prove that she was afraid of her father; that her feelings toward him after the alleged rape were unkind; and that she refused to remain in the same house with him at night while her mother was away from home.

Lucinda Hobson(sister of prosecutrix) testified to sleeping in the same bed with her father and prosecutrix that her father compelled her to get up and sleep on the outside of the bed; and that her father assaulted prosecutrix.Witness stated that she did not hear her father threaten prosecutor, having gone to sleep before such threat was made.

Within a very short time after this alleged assault, defendant moved with his family to the Brick Fry farm; but the evidence does not show in what county this farm is located.Prosecutrix says that at the Fry farm defendant again had sexual intercourse with her.

The testimony for the state clearly establishes the fact that, about the month of March, 1914, the wife of defendant was taken to a hospital in the city of St. Joseph, Mo., for an operation, and that she remained in said city under treatment about three weeks.Prosecutrix accompanied her mother to St. Joseph, and while her mother was in the hospital prosecutrix visited an aunt who resided in that city.

Prosecutrix gave birth to a child on June 26, 1914, and immediately thereafter the present charge was preferred against defendant.

A man named McClelland, who was confined in the Clinton county jail when defendant was first incarcerated therein, stated that defendant told him while in said jail that he(defendant) was guilty, but "would get out if he could."It appears by McClelland's evidence that a confession of his guilt was among the first words spoken by defendant after he met McClelland in jail.

Prosecutrix stated that defendant had shot at her mother on one occasion, but she did not know why he committed that assault.Nor was it explained whether or not defendant was prosecuted for shooting at his wife.

Defendant flatly denied the charge of rape, but admitted, upon cross-examination, that he had been convicted of felonious assault upon his wife.

The record of this cause is poorly arranged and poorly indexed.Much of it contains no index at all, and no page numbers.The motions and instructions are intermingled with the record proper.To add to the confusion, the transcript contains a complete copy of the evidence taken during the preliminary examination, without any showing that such evidence was introduced upon the trial of the cause in the circuit court.A few witnesses testified that the reputation of prosecutrix for veracity was bad.

Errors assigned are: (1) Lack of verification of information; (2) insufficiency of evidence; (3) omission to fully instruct the jury; (4) admission of improper evidence; and (5) exclusion of competent evidence.

Such other facts as are necessary to make clear the conclusions we have reached will be noted in our opinion.

F. B. Ellis, of Plattsburg, for appellant.John T. Barker, Atty. Gen., for the State.

I.Information.

BROWN, J.(after stating the facts as above).

The defendant sought by motion to quash the information of the prosecuting attorney, because it purported to be based upon the affidavit of Bertha M. Hobson, but contained no recital that said affidavit was filed with the clerk of the circuit court.The motion to quash was overruled, and the action of the court in that respect is urged as error meet for reversal.This insistence is without merit.Section 5057, R. S. 1909, does not require the affidavit of the prosecuting witness to be filed with the information in cases where said information is verified by the prosecuting attorney himself.The information in this case is sworn to by the prosecuting attorney, "according to his best information and belief," which is all the verification needed.State v. Nave, 185 Mo. 125, loc. cit. 132, 84 S. W. 1.

The affidavit of prosecutrix, Bertha M. Hobson, upon which defendant was arrested and awarded a preliminary examination, is embodied in the transcript of the examining magistrate filed in the office of the clerk of the circuit court in this cause, so that it was accessible to defendant's attorney.Under the facts in this case, the reference to said affidavit in the information may be treated as surplusage.State v. Cummings, 248 Mo. 509, loc. cit. 515, 154 S. W. 725.

II.Objection to Evidence.

After the prosecutrix had testified to the rape alleged to have been committed upon her on March 21, 1913, that she had never kept company with any man, and that defendant was the father of her child, the defendant introduced a witness whose testimony tended to prove that nine months was the ordinary period of gestation, and that it would have been impossible for prosecutrix to have become pregnant on March 21, 1913; her child not having been born until June 26, 1914, more than 15 months thereafter.To meet this situation, the state recalled the prosecutrix and, as a part of its rebuttal evidence, offered to prove that defendant had sexual intercourse with her on the Brick Fry farm some two weeks after the first crime is alleged to have taken place in Plattsburg.Defendant objected to this evidence of subsequent acts of sexual intercourse on the ground that it was evidence in chief, and not admissible as rebuttal testimony.The court overruled the objection, remarking that the state had the right to prove the parentage of the child born to prosecutrix..To this ruling defendant excepted.Prosecutrix then testified that defendant had intercourse with her on the Brick Fry farm some two or three weeks after the alleged assault on her in Plattsburg.

The trial court did not err in admitting the testimony complained of.It was not properly objected to.It is the duty of litigants, in objecting to improper evidence, to specifically point out the reason why such evidence should not be admitted.This for the reason that no court is supposed to both know and remember all the law all the time.State v. Walton, 255 Mo. loc. cit. 244, 164 S. W. 211;State v. Kanupka, 247 Ma. loc. cit. 714, 153 S. W. 1056;State v. McCord, 237 Mo. loc. cit. 245, 140 S. W. 885.If the objection to this evidence had been made upon the ground that it tended to prove a separate crime for which defendant was nct on trial, a more serious question would now confront us.It is usually discretionary with the trial court as to whether it will allow evidence in chief to be introduced in rebuttal, and, unless that discretion be abused, it will not justify reversal.In the case at barthe defendant did not ask for further t: me to call witnesses to refute the evidence of subsequent acts of intercourse; so we find that he has no just ground to complain of the admission of said evidence because it was introduced in rebuttal.State v. Buehler, 103 Mo. 203, 15 S. W. 331;State v. Miles, 199 Mo. loc. cit. 546, 98 S. W. 25;State v. Thornhill, 177 Mo. 691, loc. cit. 696, 76 S. W. 948.The cases of State v. Palmberg, 199 Mo. 233, 97 S. W. 566, 116...