State v. King

• Decision Date: 17 August 1938
• Docket Number: No. 35704.,35704.
• Citation: 119 S.W.2d 277
• Parties: THE STATE v. ARTHUR KING, Appellant.
• Court: Missouri Supreme Court

119 S.W.2d 277

THE STATE v. ARTHUR KING, Appellant.

No. 35704.

Supreme Court of Missouri.

Division Two, August 17, 1938.

Appeal from Circuit Court of City of St. Louis. — Hon. Robert J. Kirkwood, Judge.

AFFIRMED.

D.T. Lawson and Emanuel Williams for appellant.

The indictment returned by grand jurors impaneled while defendant was in custody but not given opportunity to challenge and from which fellow members of the Negro race were excluded, should have been quashed. State v. Warner, 65 S.W. 584; State v. Washington, 146 S.W. 1164. The defendant charged that there had been unlawful, arbitrary, systematic and wholesale exclusion of negroes from grand juries solely on account of race and color, proof of which sustained motion to quash, violating his rights under the Fourteenth Amendment to the Constitution of the United States of America. Defendant had right to access by subpoena duces tecum to public record to prove his motion. R.S. 1929, sec. 8854. The testimony of the prosecuting witness should have been corroborated. Where evidence is contradictory and opposed to known facts, contrary to human experience and unconvincing, it must be corroborated for conviction. State v. Parsons, 285 S.W. 412; State v. Adkins, 292 S.W. 422; State v. Tevis, 136 S.W. 339; State v. Donnington, 151 S.W. 975; State v. Smith, 237 S.W. 482. Where the evidence is conflicting and State proceeds on theory of force and insanity or incapacity of prosecuting witness, the State should have elected and witness should have been corroborated. State v. Schlichter, 173 S.W. 1072. Evidence that accused committed crime wholly independent of thought of same sort, as that charged, is irrelevant and inadmissible. State v. Gruber, 285 S.W. 426. Statement purporting to be confession of defendant, which is conversational in nature and containing statements of prosecuting witness, not charged to have been made by defendant and containing inflammatory and prejudicial remarks is inadmissible. Wharton's Criminal Law, 1001, sec. 484. The court must instruct on law concerning all matters in issue, State v. Perrigin, 167 S.W. 573, and where some testimony of sodomy instead of rape, he must so instruct. State v. Lewkotwitz, 178 S.W. 58, and when facts stated could have been a lesser degree or an attempt or assault to commit rape, he must so instruct. State v. Hamilton, 263 S.W. 127. Cross-examination should be confined to matters testified to on examination in chief. In State v. Cox, 263 S.W. 218, the court states: "It has become elementary law in this State that for the purpose of impeachment a witness cannot legally testify as to defendant's alleged specific acts of delinquency in order to affect his credibility." State v. Hewett, 259 S.W. 781; State v. Luckett, 246 S.W. 882; State v. Osborne, 246 S.W. 879; State v. Roberts, 242 S.W. 669, and even an instruction to consider such evidence for impeachment will not cure the error. When defendant is asked an immaterial question for the purpose of impeachment and to affect his credibility, the party propounding such question is bound by the answer of the witness, State v. Ansel, 256 S.W. 764, and counsel cannot impeach his answer by dramatically bringing witness or reading letter, irrelevant to the charge on which he is being tried. State v. Archie, 256 S.W. 807; State v. Cox, 263 S.W. 218.

Roy McKittrick, Attorney General, J.E. Taylor, Assistant Attorney General, and Lawrence L. Bradley for respondent.

(1) The court did not err in overruling appellant's motion to quash the indictment. Carter v. Texas, 177 U.S. 839, 44 L. Ed. 442; Norris v. Alabama, 294 U.S. 587, 79 L. Ed. 1075; State v. Washington, 242 Mo. 401; State v. Shawley, 67 S.W. (2d) 74. (2) The court did not err in overruling appellant's application for a subpoena duces tecum. (3) There was sufficient evidence to take this case to the jury and to warrant the return of the verdict. State v. Long, 108 S.W. (2d) 388; State v. Cason, 252 S.W. 688; State v. Sikes, 24 S.W. (2d) 989. (4) No reversible error was committed in refusing to permit appellant to introduce the original indictment returned against appellant. State v. McGuire, 39 S.W. (2d) 523; Sec. 3563, R.S. 1929; State v. Hudson, 285 S.W. 733. (5) The court did not err in admitting the statement or confession of appellant. State v. Roland, 79 S.W. (2d) 1050; State v. Menz, 106 S.W. (2d) 440; State v. Miller, 12 S.W. (2d) 39. (6) No error was committed by the court in admitting evidence as to flirtations by appellant with persons other than prosecutrix. State v. Peak, 85 Mo. 190; State v. Sinovich, 46 S.W. (2d) 877; State v. Thompson, 92 S.W. (2d) 892; State v. Miller, 12 S.W. (2d) 39. (7) The court did not err in permitting appellant on cross-examination to be interrogated about certain letters exchanged by appellant and Myra Wood. 16 C.J. 586; State v. Gruber, 285 S.W. 426; State v. Horton, 153 S.W. 1051, 247 Mo. 657; State v. Higginbotham, 72 S.W. (2d) 65; State v. Hawley, 51 S.W. (2d) 77; State v. Lindsey, 80 S.W. (2d) 125; State v. Pierson, 85 S.W. (2d) 48. (8) The court did not err in ruling that appellant must testify as to any relationship on his part with another girl other than prosecutrix. (9) The court did not err in failing to instruct the jury on common assault and on corroboration of prosecutrix. State v. Comer, 296 Mo. 1; State v. Miller, 263 Mo. 326; State v. Sykes, 248 Mo. 709; State v. Mitchell, 86 S.W. (2d) 185; State v. Hudson, 289 S.W. 920; State v. Gruber, 285 S.W. 426. (10) The court did not admit any evidence as to Myra Wood's mental, physical and social condition and said assignment falls of its own weight. State v. Williams, 71 S.W. (2d) 732; State v. Carroll, 62 S.W. (2d) 863; State v. Sinovich, 46 S.W. (2d) 877. (11) The court did not err in permitting the State to present certain documents to Mrs. Omohundro to refresh her memory, or in presenting to her certain letters and envelopes, and permitting her to testify concerning appellant's character after hearing he had written letters to the Wood girl. State v. Henson, 234 S.W. 832, 290 Mo. 238; State v. Pigg, 10 S.W. (2d) 320; State v. Park, 16 S.W. (2d) 30; State v. Boyd 178 Mo. 18. (12) The court did not err in permitting the State to inquire of Mrs. Omohundro and other witnesses as to conversations between appellant and others relating to the finger stalls. State v. Park, 16 S.W. (2d) 32; State v. Lebo, 98 S.W. (2d) 695; State v. Hersh, 296 S.W. 436; Wigmore on Evidence, sec. 357. (13) The court did not err in permitting the witness, Mrs. Omohundro, to give evidence as to the time Jean Barnett entered Hawthorne School. State v. Hicks, 3 S.W. (2d) 230. (14) The argument of State's counsel was not erroneous. State v. Benson, 8 S.W. (2d) 49; State v. Townsend, 289 S.W. 570; State v. Hicks, 3 S.W. (2d) 230.

ELLISON, J.

The appellant, a negro, was charged by indictment with raping a girl thirteen years old in August, 1935, in the city of St. Louis. He was convicted by a jury and his punishment assessed at imprisonment in the penitentiary for seventy years. His motion for new trial in the circuit court contained twenty-three assignments of error. Such of these as are urged in his brief will be discussed.

[1] The first assignment predicates error on the overruling of appellant's motion to quash, which charged that in the proceedings leading to the selection of the grand jurors by whom the indictment was returned all negroes were unlawfully, arbitrarily and systematically excluded, notwithstanding there were numerous negroes in the city of St. Louis fully qualified for grand jury service. It is alleged this discrimination against negroes was solely on account of their race and color; was a violation of appellant's rights under the Fourteenth Amendment of the Constitution of the United States; denied him the equal protection of the law; and had been long continued. This assignment invokes the doctrine of the Scottsboro case, Norris v. Alabama, 294 U.S. 587, 79 L. Ed. 1074, 55 Sup. Ct. 579.

The learned Assistant Attorneys General make only one answer to this assignment. They say the attack upon the indictment came too late, in view of Sections 3514 and 3515, Revised Statutes 1929 (Mo. Stat. Ann., p. 3136), because not made until after the grand jury had been sworn. The grand jury was impaneled and sworn December 2, 1935; the indictment was found December 19, but was not filed until January 31, 1936. A copy thereof was served on the appellant on February 3. The motion to quash the indictment was not filed until February 14, two and a half months after the grand jury was sworn. Section 3514, supra, provides: "Any person held to answer a criminal charge may object to the competency of anyone summoned to serve as a grand juror, before he is sworn, on the ground that he is the prosecutor or complainant upon any charge against such person, or that he is a witness on the part of the prosecutor... ." Section 3515 forbids any challenge to the array of grand jurors, or to any person summoned as a grand juror, save as authorized by Section 3514.

The State contends the only allowable departure from the procedure prescribed by these statutes is where the offense charged was committed after the grand jurors were sworn, so the accused could not possibly have challenged the jury for cause before they were sworn. On this point Carter v. Texas, 177 U.S. 442, 447 44 L. Ed. 839, 20 Sup. Ct. 687, is cited. The case does recognize that exception but does not hold it is the only one — does not say the organization of the grand jury cannot be challenged by a motion to quash the indictment in any other circumstances.

The State further maintains the facts (if any) that appellant did not know a grand jury was being summoned or that he was under investigation, will not excuse his failure to challenge the grand jury before they were sworn, since the offense charged was committed three months earlier, in August, and he had ample time to...