State v. Jackson, 33796.

• Decision Date: 25 April 1935
• Docket Number: No. 33796.,33796.
• Citation: 83 S.W.2d 87
• Court: Missouri Supreme Court
• Parties: THE STATE v. J.C. JACKSON, <I>alias</I> GEORGE CLARK, Appellant.

83 S.W.2d 87

THE STATE v. J.C. JACKSON, alias GEORGE CLARK, Appellant.

No. 33796.

Supreme Court of Missouri.

Division Two, April 25, 1935.

Appeal from Circuit Court of City of St. Louis. — Hon. Frank Landwehr, Judge.

REVERSED AND REMANDED.

Emanuel Williams for appellant.

Roy McKittrick, Attorney General, and Wm. W. Barnes, Assistant Attorney General, for respondent.

(1) The weight of the evidence or the credibility of witnesses is wholly within the province of the jury. State v. Henke, 313 Mo. 627; State v. Simmons, 58 S.W. (2d) 303; State v. Martin, 56 S.W. (2d) 138; State v. Berkowitz, 325 Mo. 526; State v. Baker, 324 Mo. 851; State v. Dodson, 29 S.W. (2d) 62; State v. Berezuk, 55 S.W. 951. (2) Where objection is made for the first time when evidence is offered on ground it was illegally obtained the court will only determine its relevancy and competency. State v. Owens, 302 Mo. 359; State v. Pomeroy, 130 Mo. 500; State v. Sharpless, 212 Mo. 200. (3) The assertion in the motion for new trial that the prosecutrix remained in the courtroom, and testified after hearing other witnesses, does not prove itself. State v. McCann, 329 Mo. 764; State v. Tummons, 34 S.W. 124; State v. Aguelera, 326 Mo. 1215. (4) Prosecutors in their argument may draw legitimate conclusions based on evidence. State v. Sinovich, 46 S.W. (2d) 881; State v. Hart, 292 Mo. 96. (5) The inquiry of the prosecutor as to former convictions of appellant was proper, testing his credibility as a witness. State v. Boone, 289 S.W. 579; State v. Burlison, 315 Mo. 241. (6) The admission of the evidence complained of in this assignment was without objection. State v. Gould, 329 Mo. 838; State v. Matkins, 326 Mo. 1083; State v. Beaghler, 18 S.W. (2d) 426. (7) The evidence of Miss Black was proper as evidence in rebuttal of that of appellant. State v. Martin, 56 S.W. (2d) 140; State v. Dollarhide, 63 S.W. (2d) 999. (8) Counsel may draw conclusions from testimony in record, even as matter of inference. State v. Evans, 68 S.W. (2d) 708; State v. Peak, 237 S.W. 471; State v. Geer, 12 S.W. (2d) 91. (9) The new discovered evidence and the record thereon are insufficient for granting a new trial. State v. Walker, 250 Mo. 321; State v. Jennings, 326 Mo. 1094; State v. Randolph, 39 S.W. (2d) 774.

ELLISON, J.

The appellant was convicted of rape in the Circuit Court of the City of St. Louis and his punishment assessed by the jury at death. The court commuted the punishment to life imprisonment in the penitentiary. From that judgment and sentence he appealed. He has filed no brief in this court. There are fourteen assignments of error in the motion for new trial. One of these complains that the verdict was against the evidence and the weight thereof; another of the latitude allowed the circuit attorney in the cross-examination of the defendant; four assign error in the argument of the circuit attorney to the jury; seven complain of the admission of evidence; and one sets up newly discovered evidence. These assignments will be noted in the course of the opinion.

The prosecutrix, Mary Bloom, was an undergraduate nurse twenty-eight years old, who lived at 5003-a Cates Avenue, St. Louis. On January 20, 1932, she advertised in the St. Louis Globe-Democrat for employment as a nurse, stating that she was young and strong and giving her telephone number. Her testimony was that about 5:45 the next morning she received a telephone call. It was a male voice speaking. The person said he desired to engage someone to care for his mother who was sick and a chronic invalid. He gave his address as 5061 Lindell Boulevard in St. Louis. She asked what pay she would receive and the person answered they would discuss that when she came. She agreed to go as soon as she had had her bath and breakfast, and he directed her to come to the side door of the house. Soon thereafter another telephone call came and the same voice informed her she would be paid $125 per month and that she should report in time to permit him to be at his office by seven o'clock. In either the first or second conversation the party told her he would send his chauffeur to meet her where the bus stopped, at Kingshighway and Lindell Boulevard.

The prosecutrix started a little after six o'clock, taking a bus on Kingshighway from Cates Avenue to Lindell Boulevard. The morning was dark and rainy. She wore rubbers, a raincoat and took her parasol. Alighting at Lindell Boulevard she started west on the north side of the street. She had a small bag containing her uniform. She had gone only a few steps when a negro man approached her from behind and said he was the servant from the house to which she was going. He took her bag and they walked west to number 5061. The negro was the appellant. It was too dark then to tell much about his appearance. Apparently the prosecutrix did not note a similarity between his voice and the voice she had heard on the telephone. She said on cross-examination that his voice on the telephone was disguised, but that answer was stricken out by the court as not being responsive to the question asked her.

The house was of stone, three stories high, with a red roof. The prosecutrix observed that it was vacant. The appellant said, "The furniture isn't all moved in, and around on the side it is furnished." They walked along the west side of the house to a side entrance, which was pretty well back. On the door was a white curtain with blue dots and a blue border. The prosecutrix directed appellant to go in and turn on the lights. He opened the door and immediately pushed her into the dark entrance. Then he put a revolver to her side and held a flash light in front of her, commanding her to go up the steps or he would cut her neck. He also told her he would kill her unless she kept quiet, and pushed her up the steps and back into a vacant room on the east side of the house.

He shoved her over by a window and stood looking at her. She remonstrated with him and he told her he was being paid by the Coleback gangsters to hold her. She tried to go to the door but he caught her and pushed her back against the wall. At that time daylight was beginning to break. He knocked her down on the floor and placed his overcoat over her head, smothering her voice. She tried to scream but was paralyzed with fright. He removed her bloomers and had sexual intercourse with her three times remaining on her for about an hour. During all this time she was begging him to desist. After these acts she says appellant told her he loved her and asked her to come to his house, but to make sure that she did not tell the police, he said he would not call her for a night or two. They went back downstairs and appellant had difficulty in opening the side door. The prosecutrix started to the front door and appellant caught her and told her he would shoot her if she attempted to go out the front way. He made her hold the flashlight for him until he got the side door open, and they walked out to the street some 75 or 100 feet away, he carrying her bag.

It was then a little before eight o'clock. The rain had ceased and it was getting light. The prosecutrix took careful note of appellant's appearance. He was wearing a dark grey overcoat, a greenish-grey cap, dark shoes, dark pants, and a tan sweater. He had a little mustache, was red under the eyes, and had a scar on the left side of his upper cheek and a circular scar by his mouth. She stood there on Lindell Boulevard for about five minutes talking with the appellant. On the witness stand she explained that she hoped a policeman or someone else would come along, and she wanted to get an accurate description of him. During this time the appellant again talked about having another meeting with her, but would not tell her where he lived. She left him there on the sidewalk, went east to the Kingshighway intersection, and took a bus back to her home on Cates Avenue. There she immediately administered to herself a bichloride of mercury douche and telephoned the police; on their advice the same morning she submitted to a physical examination by Dr. M.T. Morrison, chief physician of the venereal clinic in the division of health of the city of St. Louis.

Dr. Morrison's examination disclosed certain inflamed conditions which indicated there had been complete penetration. The microscopic examination disclosed nothing. There were no bruises or marks on other parts of her body, and no stains on the underwear except dirt stains. On cross-examination the doctor said the condition of irritation or inflammation he found might have been produced by a strong bichloride of mercury douche.

To the police officers summoned immediately after her return to her home Mrs. Bloom gave a description of her assailant. Apparently they connected the appellant with the offense from this description. They had been searching for him since the middle of January upon another charge (of forcing a white woman to live with him) and had gone to the place where he resided, at 4206 Enright Avenue in St. Louis. On the day after the assault upon Mrs. Bloom they searched his room at that address and found a postal card picture of him and a blue sheet of paper on which was written in lead pencil the address "5061 Lindell." This photograph or an enlargement thereof, was exhibited to the prosecutrix a day or two later and from it she identified the appellant as her ravisher. At the trial appellant objected to the introduction in evidence of the photographs and the piece of paper with the address on it, on the ground that they were obtained without a search warrant in violation of his constitutional rights against unreasonable search and seizure, and that it amounted to his being compelled to give evidence against himself. The appellant was arrested May 19 on description from the photograph. Prosecutrix went to the police station and identified him, and at the trial she pointed him out as the man who had committed the rape...