State v. Johnson, 41982

• Decision Date: 13 November 1950
• Docket Number: No. 41982,No. 1,41982,1
• Parties: STATE v. JOHNSON
• Court: Missouri Supreme Court

Page 219

234 S.W.2d 219

361 Mo. 214

STATE v. JOHNSON.

No. 41982.

Supreme Court of Missouri, Division No. 1.

Nov. 13, 1950.

John M. Bragg, Ava, for appellant.

J. E. Taylor, Atty. Gen., Harry H. Kay, Asst. Atty. Gen., for respondent.

DALTON, Judge.

Appellant was charged and convicted of the crime of statutory rape under Sec. 4393, R.S.1939, Mo.R.S.A., and his punishment fixed at a term of two years imprisonment in the state penitentiary.

The State's evidence tended to show that the prosecuting witness became 15 years of age on April 3, 1947 and that, thereafter, in November of that year she began to 'keep company' with appellant, who at that time was about 19 years of age; that he 'made love' to her and on December 10, 1947, in Douglas County, Missouri, he had sexual intercourse with her; that it was the first time she had had sexual intercourse with anyone; and that as a result of that intercourse a child was born to her on September 13, 1948. On cross-examination she testified to further and subsequent sexual relations with the appellant on December 17, 1947 and January 10, 1948. About the 23d day of February, 1948, after the fact of pregnancy became known, the father of the prosecuting witness conferred with appellant and his father and, thereafter, appellant 'disappeared for a while,' was gone eight or ten days, but was brought back to the county by the local sheriff.

The evidence further tended to show that on the date in question, December 10, 1947, appellant took the prosecuting witness in his father's automobile to a community singing at Bethany church near where they both lived and that the offense was committed on the return trip to her home. Appellant denied having had sexual intercourse with the prosecuting witness and offered testimony tending to show that he did not have his father's automobile on the date mentioned; that he did not attend the 'singing'; and that, on that particular night, he was 'home possum hunting' with his brother.

The record further shows that, at the close of the State's case in chief, the prosecuting witness was recalled to the witness stand by the prosecution and questioned as follows:

'Q. And you testified that the baby was born of that intercourse? A. Yes.

'Q. Do you have that baby here today? A. Yes.

'By Mr. Will H. D. Green: If the Court please, we would like to offer that baby in evidence for comparison and appearance between it and the alleged father.

'By Mr. John M. Bragg: I object to the offering of the baby in evidence for comparison. The State alleged that the defendant is the father of it, and she alleges it is the result of the intercourse testified to here, and defendant further objects for the reason the child is now approximately one year old, and it is only being offered by the State to prejudice the jury, and it wouldn't shed any light on this case whatsoever at this time.

'By the Court: Under the plea of not guilty of the charge made; that has been held proper evidence. Overruled (exception saved).

'By Mr. Will H. D. Green: Q. I will ask you if the baby you hold in your arms is the baby that was born as the result of the defendant? A. Yes.

'By the Court: Remove the cap.

'By Mr. Will H. D. Green: Q. Take the cap off and walk in front of the jury so they can observe the baby and don't make any comment. Witness walking in front of the jury with baby in her arms.'

Appellant first contends that 'the Court erred in permitting the State, over the objections of appellant, to offer the baby in evidence in the manner in which offered; and to parade the same before the jury.' This assignment is based upon paragraph 2 of the motion for a new trial, as follows: 'The Court erred in admitting (sic) the prosecution to display and parade before the jury, over the objections of the defendant, the child, which, it was alleged was the fruits of the alleged offense of statutory rape.'

The trial was had on September 23, 1949 and the baby was one year and ten days old when it was exhibited to the jury. A mistrial had been declared on two previous occasions when the jury failed to reach a verdict. Appellant insists that the manner in which the baby was exhibited was highly prejudicial to defendant; that the baby was not old enough to possess settled features or other corporeal indications; that in view of the child's age the exhibit for the purpose of comparison had no probative value as any comparison would be speculative, indefinite and uncertain; that the trial court made no finding that the baby had settled features or corporeal indications; that 'if the Court permitted the infant to be exhibited for the purpose of showing that the prosecutrix actually had intercourse with a male person on or about the 10th day of December, 1947, to bolster her testimony as to showing the Corpus Delicti that an instruction should have been given so informing the jury'; and that 'if the Court permitted the exhibition of the infant for comparing its features with that of the defendant, the jury should have been so informed by a proper instruction.'

No instructions were requested on the last mentioned matters, no objections were made or exceptions saved with reference to the court's failure to so instruct the jury and no assignment of error is presented in this court concerning these matters.

The record shows that the baby was exhibited and offered in evidence for the particular purpose of comparison of its appearance with that of its alleged father, who was present in the court room and who subsequently took the stand and testified in his own defense before the jury. It is immaterial, therefore, that the baby might have been properly exhibited for another and different purpose, to wit, for the purpose of showing that the crime charged had been committed by some one.

The general rule is well stated in 44 Am.Jur. 943, Rape, Sec. 70, as follows: 'In a prosecution for statutory rape, the birth of a child conclusively establishes a prior act of unlawful intercourse, when the date of the birth is such as to show that the child was conceived prior to the time when the mother arrived at the age of consent; and it is permissible for the prosecution to exhibit the child to the jury to prove the commission of the crime, for in such cases the state cannot be confined to proof by oral testimony, and excluded from presenting the child to the jury as evidence tending to establish the fact of birth and prior unlawful intercourse. The propriety of the exhibition of a child for the purpose of comparison on the question of race or color is conceded, but the decisions are in conflict on the question whether the child may be exhibited for the purpose of enabling the jury to compare its features and characteristics with those of the accused. Some courts permit the prosecution to exhibit to the jury a child born to the prosecutrix as a result of the rape, for the purpose of fixing the paternity on the defendant and thereby establishing the fact that the defendant committed the crime.' Also see 47 Am.Jur. 649, Seduction, Sec. 41; 27 Am.Jur. 298, Incest, Sec. 16; 52 C.J. 1077, Rape, Sec. 107; 10 C.J.S., Bastards, Sec. 92, page 177; and Annotations in American and English annotated cases 560; 1 A.L.R. 622; 40 A.L.R. 97, 111, 168; 95 A.L.R. 314.

This court has not previously ruled the issue presented. In the case of State v. Palmberg, 199 Mo. 233, 253, 97 S.W. 566, 572, reversed on other grounds, the Court said: '* * * we are of the opinion that the prosecuting witness had the right to testify that she became pregnant and gave birth to a child as the result of the...