State v. Ivey

• Decision Date: 10 June 1957
• Docket Number: No. 2,No. 45385,45385,2
• Citation: State v. Ivey, 303 S.W.2d 585 (Mo. 1957)
• Parties: STATE of Missouri, Respondent, v. Joss Soloman IVEY, Appellant
• Court: Missouri Supreme Court

Page 585

303 S.W.2d 585

STATE of Missouri, Respondent, v. Joss Soloman IVEY, Appellant.

No. 45385.

Supreme Court of Missouri, Division No. 2.

June 10, 1957.

Rehearing Denied July 8, 1957.

Charles M. Shaw and Wayne C. Smith, Jr., Clayton, for appellant.

John M. Dalton, Atty. Gen., and W. Don Kennedy, Asst. Atty. Gen., for respondent.

STORCKMAN, Judge.

The defendant, Jess Soloman Ivey, was convicted of the crime of statutory rape with which he was charged pursuant to Section 559.260 RSMo 1949, V.A.M.S. The jury assessed his punishment at imprisonment in the penitentiary for a term of 35 years and he was sentenced accordingly.

The victim of the alleged offiense was a 15 year old girl in the eighth grade of the school she was attending. The girl, when offered as a witness by the state, was asked qualifying questions by the court and counsel. Her responses indicated that she was mentally retarded and the court ruled her to be incompetent as a witness. In order to avoid giving further and needless notoriety to the unfortunate victim of this calamitous happening she will not be referred to by name in this opinion.

The defendant was married to a sister-in-law of the child's mother. The girl lived with her mother, a widow, and their home was next door to that of the defendant. The evidence of the state tended to show that during the afternoon of March 21, 1955, the defendant was drinking beer in a tavern in St. Louis County and had consumed five or six bottles. Sometime after 3:00 o'clock p. m. the defendant left the tavern and drove his automobile to the opposite side of the street where he intercepted the child as she was coming home from school. He talked with her briefly, after which she got into the passenger side of his automobile and was driven away. He was driving a 1947 model Cadillac convertible with a cloth top. At about 4:00 o'clock that afternoon two deputy sheriffs of St. Louis County, cruising in a patrol car, saw defendant's automobile parked on a secluded road in St. Louis County. The defendant's car was headed east and the deputies were driving west.

The deputies drove up beside the defendant's car and stopped. The girl and the defendant were lying face to face on the front seat. The girl was on her back and the defendant was on top of her. When he saw the deputies the defendant quickly got off of the girl and seated himself on the passenger's side of the front seat, closing the fly of his strousers as he did so. After some interrogation the deputies put the girl in their car and drove her to her home. The defendant drove ahead of them to his home. When the deputies and the girl told her mother what had occurred, the mother requested that the defendant be prosecuted. He was then arrested and charged with statutory rape. At 5:55 o'clock the same afternoon, the girl was examined at the St. Louis County Hospital. The examination disclosed a laceration of her hymen about one centimeter or a half-inch long.

The defendant did not testify at his trial and offered no evidence in his behalf. On this appeal he first contends that his motion for judgment of acquittal should have been sustained because 'there is no competent evidence of probative value to show that defendant ever carnally knew a female under the age of 16 years in that there is no evidence from which the jury could find penetration.' The defendant points out that the deputy sheriffs, who were the only eye witnesses to the events which occurred in defendant's automobile, testified that they did not see the defendant's private parts and could not definitely state that he had sexual intercourse with the girl.

In support of this contention the defendant cites State v. De Moss, 338 Mo. 719, 92 S.W.2d 112. We need not undertake to detail all of the facts of that case. It is sufficient to say that the defendant and the prosecuting witness, age 14, were married before the trial and when she was put on the stand by the state she denied that the defendant had had sexual intercourse with her on the occasion in question or at any time before their marriage. The defendant also took the witness stand and denied that he had had sexual intercourse with the prosecuting witness at any time before their marriage. As the case went to the jury, practically the only evidence the state had to rely upon was the testimony of a 9 year old sister of the prosecuting witness as to the actions of the defendant who was in bed with her and her sister at the time in question. On appeal this court held the evidence of penetration was insufficient and reversed the case. However, the De Moss case recognizes that the proof of this issue may be made by circumstantial evidence, stating, 92 S.W.2d 113: 'It is essential, in order to constitute the crime of rape, that there be penetration of the female organ by that of the male. The penetration need be but slight, but there must be penetration to some extent, and proof that there was such penetration must be adduced. We have held that such proof may be by circumstantial evidence. State v. Hamilton, 304 Mo. 19, loc. cit. 26, 263 S.W. 127, 128. But, as generally, where the evidence is circumstantial, the proof must not only be consistent with the defendant's guilt, but must be inconsistent with any reasonable hypothesis of his innocence.' State v. Hamilton, 304 Mo. 19, 263 S.W. 127, 129, succinctly states the rule in this manner: 'Proof of penetration may be shown by circumstantial evidence, and slight proof of actual penetration is sufficient.'

Because of the question presented, a more detailed recital of the evidence on this issue becomes necessary. Deputy Sheriff William Thomas Owens testified that as he approached the defendant's automobile he saw defendant is a prone position 'on top of a little girl.' He drove the patrol car up alongside of defendant's car and jumped out to investigate. There was nothing to obscure his vision. The defendant 'was getting off of her very rapidly and the girl was laying on her back with her legs extended upward and apart.' When the defendant got off of the girl he seated himself on the right side of the front seat, zipping up his pants as he did so. The girl's underpants were hanging on her left leg around the knee. Her dress was up around her waistline and her body was exposed from her raised dress down to her knees. He saw blood on her pants and on her slip. The girl was crying and seemed to be frightened. She said that she had 'told Mr. Ivey her mother would be mad at her.' It was hard for the deputy to understand her but she kept muttering 'in her crying, her mother is going to be mad at her.' In response to a question with respect to what he had been doing, the defendant told the deputies that 'the girl's mother had told him to bring the girl out there and teach her the facts of life and show her what to expect if any boys ever went out with her.' There was a hole in the top of the defendant's convertible and the defendant told the officers that 'it had been kicked out by the girl.' Later he told these same deputies that 'he was just driving through there and he noticed the girl had been kicked out of a red truck and he didn't pursue the truck but he put her in the car and was trying to console her.'

Deputy Sheriff Hugh Bresnahan testified that he interrogated the defendant on March 22, 1955, and that the defendant told him that the girl got out of a red pickup truck and resisted his efforts to take her home. The witnesses' testimony then was: 'He [the defendant] further stated that he put her in his car and she was all cramped up, and he stated it happened three or four times and the last time he also got in the passenger side and as he was trying to hold her down the deputy car pulled up and found him holding her down on the seat. He said that she kicked a hole in the canvas roof of his car.' The defendant further told Bresnahan that he did not have intercourse with the girl, that he was incapable of the act and had not had sexual intercourse in five years. He said he was just trying...