State v. Hubbard

• Decision Date: 03 June 1927
• Docket Number: 27885
• Citation: 295 S.W. 788
• Parties: STATE v. HUBBARD
• Court: Missouri Supreme Court

295 S.W. 788

STATE v. HUBBARD

No. 27885

Supreme Court of Missouri, Second Division

June 3, 1927

Sharon J. Pate, of Caruthersville, for appellant.

North T. Gentry, Atty. Gen., and Claude Curtis, Sp. Asst. Atty Gen., for the State.

OPINION

HIGBEE, C.

The defendant was convicted on April 15, 1926, in the circuit court of Pemiscot county of the abominable and detestable crime against nature, his punishment assessed at imprisonment in the penitentiary for a term of two years, and he appealed from a sentence in accordance with the verdict of the jury.

The defendant was arrested on May 25, 1925, waived a preliminary hearing, and, failing to give bond for his appearance, was committed to jail. On July 17, 1925, an information was filed, charging that on or about May 24, 1925, the defendant at the county of Pemiscot, did willfully, feloniously, and wickedly and against the order of nature, commit the detestable and abominable crime against nature with mankind, to wit, with a certain negro boy, one Melvin Nesby, by then and there wickedly and feloniously inserting his penis or sexual organ into the mouth of the said Melvin Nesby and by causing the said Melvin Nesby to suck the said Barto Hubbard's penis or sexual organ, etc. He was arraigned on April 15, 1926, refused to plead, and a plea of not guilty was entered by order of the court. He thereupon filed an application for a continuance because of the absence of two witnesses, which application was overruled, and the trial proceeded before a jury, who returned a verdict of guilty as charged in the information and assessed his punishment as previously stated.

Melvin Nesby, a negro boy, was offered as a witness for the prosecution. The defendant's counsel, desiring to test his competency as a witness, interrogated the witness, who in answer thereto stated substantially:

'I am seven years old; I go to school, can read, and am in C primer grade; live at 205 Bushey avenue.

'Q. You don't know what it means to tell the truth and what it means to swear before God or take an oath? A. No. sir.'

An objection to the competency of the witness was overruled and an exception was saved.

On direct examination by Mr. Corbett, the prosecuting attorney, the boy was asked:

'Do you know what becomes of little colored boys when they don't tell the truth? A. The bad man gets them.'

The witness, without further objection, testified as follows:

'Q. Did this man back there (the defendant) ever do anything to you? A. Yes, sir; made me suck his worm. He done that here in this town, down by the side of Tate's barn. That was in May last year. My brother and the other man were with me when he started with me around Tate's barn.

'Q. Now, you say he made you suck his worm; you mean he put his peter in your mouth; is that what you mean? A. Yes, sir.'

Cross-examination:

'This was in May. I have talked to this man here about this; he told me to say it was in May.

'Q. Did he tell you to tell the court and jury that this man made you suck his worm? A. No, sir.

'Q. You say he made you suck his penis? A. Yes, sir.

'Q. What did you do then? A. Didn't do anything. I started to run and he run and caught me.'

Defendant moved to exclude the testimony of the witness for the reason that the witness had no idea of the sanctity of an oath. The motion was overruled and an exception saved.

Leamon Nesby, aged eight, testified:

'I was with my brother when this man and another man had me and my brother in the alley by Tate's barn and made us suck him off. The other man had my brother. I saw this man when he had my brother do that; we had not had supper; it was here in town. We went home and told mama. We first saw these two men sitting on George Alexander's porch; they took my hand and led me down the alley and made us such him off.'

Mrs. Joetta Nesby, mother of Leamon and Melvin Nesby, testified:

'I lived on Bushey avenue in Caruthersville. I remember the circumstance when it is claimed Barto Hubbard and Harold Johnson took my two little boys around in the alley.'

Over the defendant's objection she testified further:

'These boys made complaint to me about that. I have known Barto Hubbard nearly a year. After complaint was made to me I went to the law; John Hosler and George Myrick. I don't know where Jack Tate's barn is; it is in Missouri; don't know if it is in Pemiscot county.'

Cross-examination:

'All I know about it is what the boys told me. I was at home when the boys told me.'

George Myrick, a policeman, testified:

'I know Mrs. Joetta Nesby and her two boys, Melvin and Leamon. Mr. Hosler and I were down there and she told Mr. Hosler and he told me. Jack Tate's barn is in Pemiscot county, Missouri; that was last spring some time; about the time the defendant and Harold Johnson were arrested.'

John Hosler testified:

'I am chief of police. I have known these little negro boys, Melvin and Leamon Nesby, and their mother, Joetta Nesby, about two years. Complaint was made to me about May 24, 1925, about Barto Hubbard and Harold Johnson having these two little negro boys out.'

The defendant testified in his own behalf:

'I am charged with having the two boys out behind Jack Tate's barn on the afternoon of May 24, 1925. I went up on Black Island to Bill Ledbetter's; I left about 4:30 p. m. I was never back of Jack Tate's barn with these boys.'

Joetta Nesby testified in rebuttal:

'At about dark on the evening these boys made complaint about these fellows. I saw Barto Hubbard sitting on George Alexander's porch; that was about an hour and a half before they made complaint to me.'

The motion for new trial assigns the following errors: (1) In admitting incompetent and immaterial evidence; (2) in overruling defendant's application for a continuance; (3) in failing to instruct the jury on the question of an alibi; (4) the information fails to charge the defendant with any offense known to the laws of the state; (5) the court erred in giving instructions 1, 2, 3, and 4 for the state; (6) the verdict is against the weight of the evidence; (7) the court erred in permitting Melvin Nesby to testify; (8) the court erred in permitting the state to reopen its case and produce new testimony after it had closed its case.

The first and fifth assignments of error do not set forth in detail and with particularity the specific grounds for new trial, as required by section 4079, Laws 1925, p. 198; hence they cannot be considered. State v. Standifer (Mo. Sup.) 289 S.W. 856.

2. The application for a continuance, filed on the day of the trial and after the state had announced ready for trial, states in substance that the defendant could not safely go to trial because of the absence of two witnesses, Charles Tull and Charles Jones, who would, if present, each testify that, on the afternoon when the defendant was alleged to have committed the crime charged, the defendant and Charles Jones, Charles Tull, and Bill Ledbetter left the city of Caruthersville in Ledbetter's car, about 4 p. m., and did not return until after 9 p. m. of March 24, 1926; that, when last heard from by defendant, Charles Tull lived in Bragg City in Pemiscot county, and Charles Jones lived in Caruthersville in said county and drove a taxicab for hire in said city; that defendant had a subpoena issued for said witnesses and the return thereon showed service on Charles Jones, who was not the Charles Jones for whom defendant had the subpoena issued, but a different man, and that Charles Tull was not found; that said witnesses were not absent with defendant's connivance or consent and the application is not made for vexation or delay; and that he verily believes that said testimony of said witnesses if present to be true, and that he is unable to prove any other state of facts by any other witnesses, save and except the said Charlie Jones and Charlie Tull.

The application shows that Bill Ledbetter knew the fact that defendant was out of Caruthersville on the afternoon the offense was alleged to have been committed, which the application twice states was on March 24, 1926, not May 24 1925. It avers that, when the witnesses Charles Jones and Charles Tull were last heard from, Charles Jones lived in Caruthersville and Charles Tull lived in Bragg City in Pemiscot county, but does not disclose where they then lived, or could be found, or the probability of securing their presence or testimony at the trial, if a continuance should be granted. While it is alleged that the defendant can prove an alibi by these witnesses, it is not alleged that he is unable to prove such fact by any other witness whose testimony can be as readily procured. It does not show when the subpoena was issued, or what diligence, if any, was exercised to secure the presence of the witnesses at the trial. In...