State v. Horton

• Citation: 153 S.W. 1051
• Parties: STATE v. HORTON.
• Decision Date: 19 February 1913
• Court: United States State Supreme Court of Missouri

153 S.W. 1051

STATE v. HORTON.

Supreme Court of Missouri, Division No. 2.

February 19, 1913.

1. CRIMINAL LAW (§ 1064) — APPEAL — REVIEW — MOTION FOR NEW TRIAL.

An alleged error in instructions not recited in defendant's motion for new trial will not be reviewed on appeal.

2. CRIMINAL LAW (§ 393) — EVIDENCE — SELF-INCRIMINATION — PHYSICAL EXAMINATION OF ACCUSED — "CONSENT."

Where accused while in jail awaiting trial was examined by physicians at the instance of the state, his failure to object thereto did not amount to "consent," and the evidence of the physicians as to the result of their examination was objectionable, as, in effect, compelling accused to testify against himself, in violation of Const. art. 2, § 23.

3. CRIMINAL LAW (§§ 488, 695) — PRIVILEGE — PHYSICAL EXAMINATION OF ACCUSED — OBJECTIONS.

Such evidence, however, was not objectionable because the physical examination took

place after the preliminary examination of accused before the committing magistrate, nor was an objection on such ground sufficient to call the court's attention to the incompetency of the evidence as violating accused's privilege not to testify against himself.

4. WITNESSES (§ 374) — BIAS — EVIDENCE — THREATS BY PARENT.

In a prosecution of a school teacher for assault on a female pupil 11 years old, prosecutrix's mother having testified against him, and having denied that she had made threats of personal violence against him, it was error to exclude evidence that she had made such threats against him before the alleged assault of the daughter, which defendant denied.

5. CRIMINAL LAW (§ 369) — EVIDENCE — OTHER OFFENSES.

In a prosecution of a school teacher for rape on a female pupil, the state was not entitled to prove in chief a prior alleged independent assault on a different pupil.

Appeal from Circuit Court, Jackson County; Ralph S. Latshaw, Judge.

I. M. Horton was convicted of an offense, and he appeals. Reversed and remanded.

Tried in the criminal court of Jackson county, defendant was convicted of rape, and appeals from a judgment of that court sentencing him to a term of 25 years in the state penitentiary.

Defendant (colored) was a school teacher in Kansas City, Mo., and was charged with ravishing Callie Cason, one of his pupils, of the age of 11 years.

The testimony of the prosecutrix is to the effect that when school adjourned for the noon hour on May 25, 1911, the defendant requested her to remain and pour some water on his hands; that after the other pupils had left the building defendant locked the doors, placed her on a table, and ravished her. She says that while defendant was making the assault she threatened to tell her father and mother, whereupon defendant promised to give her a nickel if she did not tell on him. She testified quite positively that defendant confined her in the schoolroom all afternoon. Upon further examination, she stated that while the assault was being committed four or five little girl pupils returned and "peeped in" through the windows of the schoolhouse; that defendant saw these pupils, discontinued the assault, and let the little girls into the schoolroom, whereupon the defendant and all the pupils gathered at the home of Mrs. Dulin, a neighbor, to play upon a piano and practice singing for the closing exercises of school.

The crime, if committed by defendant, was committed on Thursday, May 25, 1911. Prosecutrix attended school on the following day (Friday), but did not inform any one of the assault until about 10 days later. On Thursday of the following week prosecutrix went to Kansas City, Kan., to visit Mrs. Bell, a married sister, where she remained until the following Saturday evening. Prosecutrix further testified that she did not inform her sister of the assault while on this visit, but the sister (Mrs. Bell) testified that the prosecutrix did inform her of the crime while at her home; that she (Mrs. Bell) went home with prosecutrix Saturday evening intending to inform her mother of what had occurred. She says that she forgot to tell her mother until about 11 o'clock the next day (Sunday). The mother of prosecutrix testifies that, after being informed of the crime, she called upon prosecutrix for an explanation; that prosecutrix "began to cry, and I asked her what she was crying for. She said: `Mamma, if I tell you what is the trouble will you whip me?' I said: `I won't if you tell me.'" Prosecutrix then informed her mother that she had been ravished by defendant. A physician was promptly called, who made an examination of the prosecutrix, and found that her hymen was torn and lacerated, and that she was suffering from gonorrhea. Two of the little girls who prosecutrix testified had "peeped" into the schoolhouse at the time of the alleged assault were called by the state. One of them testifies that when she reached the schoolhouse, just after lunch, that neither the defendant nor prosecutrix were there; that they had gone up to Mrs. Dulin's to practice on the piano. The other girl testified that defendant and prosecutrix were standing inside the schoolhouse when she arrived there; that she saw no assault committed, but that the dress of the prosecutrix "was wrinkled." After his arrest defendant was examined by two physicians at the request of a police captain. These physicians found that defendant was suffering from gonorrhea, apparently a very recent infection of that disease. Prosecutrix further testified that defendant had whipped her while she was a pupil at his school, but she could not remember how many times, nor why the whippings were administered.

Defendant denied the charge. His testimony is to the effect that when he dismissed his pupils at noon on May 25, 1911, he accompanied a little seven-year old pupil to the home of her aunt, a Mrs. Edwards, about two blocks from the schoolhouse, eating his lunch as he walked along the streets; that it was his custom to accompany this seven-year old pupil home to prevent the older pupils from fighting or abusing her; that from Mrs. Edwards' house he went to the home of Mrs. Dulin, a short distance from the schoolhouse. Mrs. Dulin is also colored, and owned her own home and a piano. By her permission, and at defendant's request, his pupils assembled there to play upon her piano, and to practice some songs which he intended should be sung at the close of school. Mrs Edwards and Mrs. Dulin corroborate defendant's testimony regarding his visit to their homes on the day of the alleged assault. Mrs. Dulin testifies that defendant arrived at her home about 10 minutes after noon on May 25, 1911, while she and her husband were eating lunch; that his pupils came in as soon as they had time to go home for lunch. She and several other witnesses testified that prosecutrix came to Mrs. Dulin's on May 25th and joined in the noon hour singing practice. A colored man named Thomas (a teamster) testified that he arrived at the schoolhouse precisely at noon on May 25, 1911, and went into the building to use the telephone; that school had been dismissed, and that there was no one in the building at that time; that a few minutes later he went to Mrs. Dulin's, and saw defendant and prosecutrix there. Defendant testified that the mother of prosecutrix was angry with him because he had whipped her children, and because he was, in some way, connected with some charity contributions which the mayor had sent to him for distribution on the preceding Christmas; that she had said he should not teach that school another term. Three witnesses testified to the good reputation of defendant prior to the time he was arrested on the present charge....