State v. Houston

• Decision Date: 05 June 1924
• Docket Number: No. 25350.,25350.
• Citation: 263 S.W. 219
• Parties: STATE v. HOUSTON.
• Court: Missouri Supreme Court

263 S.W. 219

STATE v. HOUSTON.

No. 25350.

Supreme Court of Missouri, Division No. 2.

June 5, 1924.

Appeal from St. Louis Circuit Court; Tranklin Miller, Judge.

David Houston was convicted of statutory rape, and he appeals. Reversed and remanded.

Leo. P. Ehrhard and R. P. & C. 3. Williams, all of St. Louis, for appellant.

Jesse W. Barrett, Atty. Gen., and Henry Caruthers, Asst. Atty. Gen., for the State.

Statement.

RAILEY, C.

On December 21, 1922, an information was filed in the circuit court of the city of St. Louis, Mo., charging defendant, David Houston, with having, in said city, on August 31, 1922, raped Jennie Ellen Houston, a female child under the age of 16 years, to wit, of the age of 15 years, etc. He was arraigned, entered a plea of not guilty, the case was tried before a jury, and, on February 20, 1923, the following verdict was returned:

"We, the jury in the above-entitled cause, find the defendant guilty of rape by carnally and unlawfully knowing a female child under the age of 16 years as charged in the information, and assess the punishment at imprisonment in the penitentiary for 5 years.

                               "J. P. Kerr, Foreman."
                

Motions for a new trial and in arrest of judgment were filed and overruled. Judgment was rendered, and sentence pronounced upon defendant, in conformity to said verdict, and an appeal was granted him to this court.

State's Evidence.

Jennie Ellen Houston testified in substance. as follows: That on August 12, 1922, she went to live with Mrs. Anna Dore, in St. Louis, Mo.; that prior to that time she had traveled from place to place in Indiana and Illinois with her father, brothers, sister. and with other parties; that her mother died 11 years before date of trial; that after her mother's death she lived with her aunt; that she commenced traveling with her father in July, 1922; that prior to said date she lived with her father at Monticello, Ind.; that she was 15 years old on the 31st of July, 1922; that she had quit school in June at Monticello; that she had only known Mrs. Dore since August, 1922; that her father came to St. Louis and placed her with Mrs. Dore to work on August 12, 1922; that she and her father slept in the front room upstairs at the home of Mrs. Dore; that they slept in the same bed the first night they went to Mrs. Dore's, and continued to sleep together there for about I. month; that about 2 weeks after they commenced sleeping together her father had sexual intercourse with her; that her father told her it would do no harm; that he did that to her mother, and told her she would not have to learn it by her husband; that she told her father it was all right, and she did not think it would do any harm; that her father rubbed his hand over her, petted and kissed her; and he told her he loved her, and then put his "thing" into her and had intercourse with her; that she continued to live there with her father for some time after this; that she left Mrs. Dore's in. November, 1922, and went to her grandmother's.

On cross-examination she testified in substance: That she kept house for her father at Frankfort, Ind., when she was 13 years old; that he sent her to school at Frankfort; that her father, her sister Iola, her brother James, and herself, with the Beal family, traveled and camped out for about 1 month, during July and August, 1922: that Iola lived at Mrs. Dore's while she (witness) was there; that her father treated her all right for a while before the above occurrence; that he was kind, affectionate, and in a way allowed her what she wanted within his means; that her father did not always have employment; that he never attempted to have intercourse with her but the one time; that her father said he was going to do it again, and she left; that he had intercourse with her about August 26, 1922; that she continued to sleep with him for 2 weeks after that, and that he did not attempt anything more after that; that she had been in the custody of the house of detention, in the city of St. Louis, Mo., from November 7, 1922, to date of trial; that she had been in prison in the house of the Good Shepherd during that time; that she came into court with a probation officer on each side of her and they occupied that position while she was attending court in this ease; that she was not allowed to communicate with her relations; that she was at the House of the Good Shepherd for about 4 weeks; that none of her relatives have been allowed to speak to her; that a few days before the trial Mrs. Pore put her arms around her (witness), kissed her, and walked off with her when she was with the probation officers; that her relatives were not allowed to speak to her the day before the trial; that the act of intercourse occurred about 8 o'clock at night; that you had to pass through her room to get into the next room upstairs; that her sister Iola came to Mrs. Dore's about 1 week after she and her father went there; that she (witness) was treated kindly and with affection by Mrs. Dore; that she had confidence in Mrs. Dore; that the latter taught her to cook and do housework; that before the sexual intercourse her father would leave her at home and take her sister Iola with him three or four times a week; that he only took her to the show once; that she cried on account of this treatment; that her father left in October and went to his brother's at Steelville, Ill.; that she thought her father was partial to Iola; that when her father left for Steelville he kissed her good-bye and gave her a dollar; that they were crowded at Mrs. Dore's the first night she and her father went there; that Iola and Mrs. Martin were sleeping on the, davanette, and Mrs. Dore occupied the room downstairs. She further testified on cross-examination:

"Q. Now, when you were assigned to this room upstairs, did Mrs. Dore suggest that you and your father sleep up there? A. She wanted me to sleep with my cousin, and my father refused."

Counsel for defendant read from the deposition of witness, in which she testified, that her father slept with her upstairs because there was no room elsewhere, and he had intercourse with her about 2 weeks after they went to Mrs. Dore's; that Mrs. Dore suggested they should occupy the same room; that, when this occurred, the house was all open, the doors were open, it was hot weather, her cousin and Iola were there, and Mrs. Dore was downstairs.'

Mrs. Anna Dore testified, in substance, that she lived in St. Louis, Mo.; had known defendant 14 or 15 years, and had known Jennie Ellen Houston since she was 2 years old; that in August. 1922, defendant and his daughter, Jennie Ellen, had no place to stay, and came to her house, expecting to stay a week or 10 days, but stayed until about the middle of October; that he told witness he would give Jennie Ellen to her to take care of; that he turned over to her said daughter, and was not to have anything more to do with her; that they slept upstairs, and there were only two rooms up there. Witness testified as to what occurred as follows:

"Q. Now, what sleeping arrangements were provided for them? A. Well, the niece was staying with me, and she had the davanette downstairs, and I said, `Dave, Jennie Ellen can sleep with Nellie; you can sleep upstairs in the front room.' He said, `No, I don't want her to sleep with Nellie, she will learn things she has no business to learn.' I said, `Well, there is a cot up there and a bed up there, you can make out the best you can.' And he said, `Well, she can sleep with me, there is no harm in that.'"

Mrs. Dore further testified that Jennie Ellen left her home on November 7, 1922; that defendant left about the middle of October; that he paid his own board, but paid nothing for Jennie Ellen.

On cross-examination witness testified that defendant was partial to Iola, would take her to shows and leave Jennie Ellen at home; that he said he did not want people to think he was walking with a chicken; that she (witness) thought he ought to treat them both alike; that Jennie Ellen would cry after he had taken Iola out; that Jennie Ellen is a sweet, good girl; that she did her work well; that she loved witness, and the latter loved her; that she was attached to witness, and would do whatever witness told her to do.

The state rested, and defendant interposed a demurrer to the evidence, which was overruled.

Defendant's Evidence.

The defendant, David A. Houston, testified in substance, that he lived at Steelville, ill., and was a coal miner; that he was 45 years old in November, 1922; that he is the father of Jennie Ellen; that he has five children, and one stepson living; that Jennie Ellen is next to the youngest child; that his daughter Wynona is married, and lives in Denver, Colo.; that his wife died November 30, 1912; that he sent his children to school; that his son, James, 14 years of age, is with Mrs. Dore; that his niece, Nellie Morton, was living with Mrs. Dore, and he went there to see her; that Mrs. Dore prevailed on him to let Jennie Ellen come to her house so she (Mrs. Dore) could take care of her, and that he (defendant) could come along and board with them, so they would be together. Defendant further testified:

"Q. Tell the circumstances under which you occupied the room with your daughter, Jennie Ellen? A. Because they was short on room, and when it was suggested that Nellie Morton occupied the davenport downstairs, but an objection was raised by Mrs. Dore in regard to my little girl sleeping with Nellie. Her reason was that Nellie was out late at night and was inclined to talk in a manner she wouldn't like my little girl to hear it, and she suggested that she sleep upstairs, since her bed was downstairs at the foot of the stairway.

"Q. Did she sleep upstairs in the bed with you? A. She did.

He testified, that he never had sexual intercourse with his daughter while sleeping upstairs with her at the home of Mrs. Dore; that Iola came to Mrs. Dore's on the evening of...