State v. Ivy

• Decision Date: 02 February 1917
• Docket Number: No. 20014.,20014.
• Citation: 192 S.W. 733
• Parties: STATE v. IVY.
• Court: Missouri Supreme Court

192 S.W. 733

STATE v. IVY.

No. 20014.

Supreme Court of Missouri, Division No. 2.

February 2, 1917.

Rehearing Denied February 17, 1917.

Appeal from Circuit Court, Pemiscot County; W. N. Evans, Judge.

Ora Ivy was convicted of rape of a girl under the age of 15 years, and he appeals. Affirmed.

The appeal is from a judgment of the Pemiscot circuit court, convicting defendant of the rape of one Dialy Scheppacher, a female under the age of 15 years, and fixing his punishment at imprisonment for a term of 50 years in the state penitentiary.

In the summer of 1915, Dialy Scheppacher, who was then about 11 years old, together with a sister and a brother, lived with their grandfather, J. M. Scheppacher, in the city of St. Louis. Some time in July or August, 1915, Mrs. Ivy, wife of defendant, made an arrangement with the grandfather whereby she took Dialy and the boy, who was younger than the girl, away with her. A few days later the Ivys, who had no children of their own, moved with the two children to Netherlands, in Pemiscot county, where the defendant entered the employment of one Dean Johnson as a hostler in a mule barn. There, according to Johnson, the defendant performed very indifferent service, such as would soon have provoked his discharge, but for the pity his condition excited in his employer. Nothing further is shown regarding the character of the defendant, except that one of his witnesses at the trial, Dr. Short, swore that he had known him for 25 years, and that he had always borne a good reputation.

According to the story told by the prosecuting witness, the defendant treated her well for some time after the removal to Netherlands. But one day when Mrs. Ivy and the little boy, Dialy's brother, were away on a visit, the defendant accomplished the violation of her person in a manner which she detailed. She admitted that Ivy did not caution her not to tell of the occurrence. Mrs. Ivy, according to the girl, that same evening discovered stains on the girl's clothing and induced her to confess the truth. From that time on Mrs. Ivy treated her cruelly, took her toys away from her, and about a month later took her to Hayti, the nearest available railroad station, and bundled her off to St. Louis.

According to Mrs. Ivy, she discovered the evidence mentioned of Dialy's mistreatment, but said nothing to her about it at the time. Some three weeks after such discovery, suspecting something wrong with the girl, she examined her and found confirmation of her suspicion. The girl thereupon, she says, told her how she had started some three weeks before to the house of a neighbor, by the name of Johnson, had lost her way, and was taken by two men, whom she describes, to a house, where they both mistreated her. This story was repeated, according to Mrs. Ivy, in the presence of her husband, who corroborates her. The defendant, however, disagrees with his wife as to the time of the occurrence. He says the girl placed it a few days before she told about it, while his wife puts it some three weeks or more before.

These two men, whose names are given as Hugh Crowell and Ward Watts, Ivy says he did not know at the time, but, on learning their names, swore out a warrant for their arrest. What became of the case against them does not appear in the evidence. They both appeared at the trial and as witnesses for the state, each saying he did not know the girl, had never seen her before to his recollection, and had never mistreated her in any way. No attempt was made to impeach the testimony of these men.

The conductor, Brownfield, in charge of the train which took Dialy to St. Louis, testified that he remembered the girl being on the train, and that she was very sick all the way to the city; that she needed attention all night long. The girl's grandfather, J. M. Scheppacher, swore that she came home very sick; "almost dead," as he puts it; that she was in bed there off and on for three or four weeks; that prior to the time she was committed to the care of the Ivys she had been a strong healthy girl.

Dr. Sherman J. Pope, assistant city diagnostician, examined the girl after her arrival in St. Louis, and found her suffering from a disordered and painful condition of her sexual organs, which he says was caused solely by penetration, and not by any venereal disease. He said conditions indicated the injury had occurred some time before; perhaps a month or two months.

In contradiction of the statements made by Mrs. Ivy and the defendant as to the accusation of the two men, the prosecuting witness was called in rebuttal and said, when she told Mrs. Ivy she was going to charge defendant with the crime, Mrs. Ivy thereupon beat her, tied her to a bedpost, poured coal oil over her, and threatened to burn her up if she did not tell the people that two men had done it. She kept her tied to the bedpost, according to the girl's story, for a day and night, accompanying this maternal restraint with beating, pouring of coal oil and admonitions to expect instant cremation. The girl very naturally yielded to these pursuasions and agreed to accuse the two men. This experience, if true, would account to some extent for the physical condition of the girl on her arrival in St. Louis.

A boy named Morris Johnson was offered by the defense to tell about hearing something of the girl's alleged story of two men, which he claimed to have heard in the presence of Mrs. Ivy. On cross-examination he did not seem to remember anything very definite about the conversation. Dean Johnson testified that after Dialy had been taken to St. Louis she told him about the two men, but qualified his statement by saying he thought she was very feeble, sick, and mentally unbalanced at the time. He mentioned some wild statements made by her which would indicate delirium.

Sam J. Corbett, of Caruthersville, for appellant. John T. Barker, Atty. Gen. (Tipton & Le Mire, of Fulton, of counsel), for the State.

WHITE, C. (after stating the facts as above).

I. The information in charging the time when the offense was committed states:

"That Ora Ivy, on or about the ____ day of ____, 1915, at and in the county of Pemiscot, etc., * * * did make an assault," etc.

It is claimed by appellant's counsel that "time was of the essence of the offense," because an alibi was presented as a defense, and therefore the information was defective under section 5115, in not stating the day and month when the crime was committed. This objection was not presented at any stage of the proceeding, and is not mentioned in the motion for new trial. Besides, nothing occurred at the trial to indicate that time was of the essence of the offense. The issue of an alibi is not presented where the state claims the crime was committed at one time and place, and the defense is merely that it was committed at another time and place. 1 Words and Phrases, Second Series, p. 177; Anderson's Law Dictionary, Alibi. Therefore the information was sufficient. State v. Moore, 203 Mo. loc. cit. 626, 102 S. W. 537.

II. Appellant's counsel, in contending that a case was not made out, point to the case of State v. Newcomb, 220 Mo. 55, 119 S. W. 405, as one almost exactly like the case at bar. This court, however, in the Newcomb Case, did not hold that a case was not made for the jury, but reversed and remanded the case for errors occurring at the trial. In the Newcomb Case the position of the suspected parties was the reverse of what they are in this cause. There the complaining witness persisted in accusing her father of the crime until apparently forced to accuse the defendant. Here the prosecuting witness persisted in accusing Ivy, who was in loco parentis, notwithstanding violent efforts to induce her to accuse strangers. Some minor inconsistencies, it is true, appear in the testimony of the prosecutrix, but they are chiefly as to the matter of dates and only such as might be expected would develop from a shrewd and skillful cross-examination.

The evidence in this case is much more convincing than that in the Newcomb Case, and was entirely sufficient to sustain the verdict.

III. Appellant's counsel urge with great earnestness the proposition that the trial court erred in overruling a motion to quash the information and an application for a continuance, both of which were presented on the ground that the names of all the witnesses for the state were not indorsed on the information. It is true the record proper shows the filing and overruling of such motion and such application, but neither the motion to quash nor the application for continuance, nor any exception to the ruling on either of them, is incorporated in the bill of exceptions, and for that reason such rulings cannot be reviewed.

However, the matter of the failure to indorse the names of the witnesses upon the information came up later in the progress of the trial, when J. S. Brownfield, the conductor, was offered as a witness for the state. The defense objected to any evidence from him on the ground that his name was not so indorsed, and excepted to the ruling in admitting it. It has been repeatedly held that under section 5097, R. S. 1909, the state could introduce witnesses whose names were not thus indorsed on the indictment or information. State v. Barrington, 198 Mo. loc. cit. 66-70, 95 S. W. 235; State v. Myers, 198 Mo. loc. cit. 246, 94 S. W. 242; State v. Walton, 255 Mo. 243, 164 S. W. 211; State v. Rasco, 239 Mo. loc. cit. 554, 555, 144 S. W. 449; State v. Lawson, 239 Mo. loc. cit. 598, 145 S. W. 92; State v....