State v. Kuebler

• Decision Date: 02 March 1929
• Docket Number: No. 28763.,28763.
• Citation: 14 S.W.2d 449
• Parties: STATE v. KUEBLER.
• Court: Missouri Supreme Court

14 S.W.2d 449

STATE v. KUEBLER.

No. 28763.

Supreme Court of Missouri, Division No. 2.

March 2, 1929.

Appeal from St. Louis Circuit Court; Claude O. Pearcy, Judge.

Henry Kuebler was convicted of carnally knowing a female child under the age of 16 years, and he appeals. Affirmed.

Bass & Bass, of St. Louis, for appellant.

Stratton Shartel, Atty. Gen., and Claude E. Curtis, Sp. Asst. Atty. Gen., for the State.

DAVIS, C.

The grand jury of the city of St. Louis, on January 29, 1926, indicted defendant for the offense of carnally knowing, on September 30, 1924, one Dorris Deuser, a female child under the age of 16 years. After several continuances and a mistrial, defendant was tried to a jury, resulting, on January 21, 1927, in a verdict of guilty and the assessment of punishment at imprisonment in the penitentiary for 5 years. From the judgment entered on the verdict, defendant appealed.

The evidence sustains the finding that Dorris Deuser was a female born on the 11th day of December, 1909, and that in September and October, 1924, she was less than 15 years of age. At about 7:30 p. m. on the last Sunday in September or the first Sunday in October, 1924, she departed from her home, where she resided with her father and mother, attended by her brother, who was driving an automobile, ostensibly to accompany him to a theater, but in realty to meet a girl acquaintance by the name of Helen, contrary to her mother's knowledge and wishes. Dorris and Helen proceeded to a neighbor's home, where they exchanged dresses, after which they walked to the Lowell Theater, where they met two boys or young men, one of whom was in possession of a Ford touring car. The boys took the girls driving, and returned them about 11:30 p. m. to the home of the neighbor, near Broadway and Pope avenue, where each donned her respective costume. On returning to the street, they were met by defendant, who was driving an automobile. He accosted the girls, and, inquiring their destination, he was told by Helen that they were on their way to meet Dorris' brother. Accepting the offered invitation of defendant, both girls climbed into the front seat, defendant remarking, "I have just taken Anna home." (It seems that Anna is Helen's sister.) Defendant then drove Helen home, and let her out in the presence of her mother, who asked Helen, in the presence of defendant, the identity of her companions, and Helen replied, "Henry Kuebler and Dorris Deuser."

Defendant departed with Dorris, and drove up Holly avenue, where he stopped his car. Defendant then asked the girl to give it to him, and, upon inquiry as to his meaning, he said, "Well, give it to me," and with that he began loving and kissing her. She tried to pull away, and said to him that her brother was waiting, upon which he replied, "Your brother can wait." Defendant forced Dorris into the back seat of the machine and had sexual intercourse with her, while she fought and shouted until she became dizzy. After he had accomplished his purpose, she tried to leave; but he would not permit it. He drove her to the place where she was to meet her brother, and, upon alighting, he said "Goodbye," but she refused to answer him. There she met her brother and the girl whom the brother later married. Her brother asked her what she was doing out with Henry Kuebler. Dorris made no complaint at that time or later as to the occurrence, until approximately the time her baby was born on June 22, 1925. She first related, a few days previous to the birth, the history of the occurrence to the attending physician, although she had been casually examined during the nine-months period by him and other physicians, who failed to comprehend her condition, but treated her for other ailments. Dorris stated that she never had had sexual intercourse with any one other than defendant.

Two days following the birth of the baby, defendant went to the home of Dorris, around 9 o'clock in the morning, and found her mother there, who said to him, "Well, Henry, you know this baby is born, and Dorris accuses you of being the father;" to which he replied, "Yes; I had intercourse with her, Mrs. Deuser; but I think there were others." The evidence tends to show that on this occasion defendant agreed to marry Dorris, and left with that understanding; but he telephoned that evening that he had changed his mind, on the ground that others had had intercourse with her. He stated then and later that he intended to let the law take its course. The occurrences took place in the city of St. Louis.

Defendant denied sexual intercourse with the prosecutrix, as well as admissions that he carnally knew her. Several witnesses stated that his reputation for honesty, truth, veracity, and morality was good. Other relevant facts will appear in the course of the opinion.

I. Defendant requested the trial court to instruct the jury to acquit him. This request was refused, and error is predicated thereon, on the ground that the entire evidence manifests a substantial doubt of guilt. The position cannot be sustained. The prosecutrix testified that defendant lifted her over into the back seat, and raised her dress, whereupon he had sexual intercourse with her, although she was fighting him. The act of intercourse hurt her so, she said, that she "hollered"; and she further said, "Oh, you are killing me;" and he said, "Oh, this won't kill you;" she said, "And I hollered and hollered, and he didn't pay any attention, and I felt real dizzy like, and he kept on anyhow; and, after it was over, I wanted to leave, and he wouldn't let me." The proof herein manifests that the prosecutrix was a female child under the age of 16 years, and that she sustained sexual intercourse with a male. While these facts are not admitted, they do not appear controversial. Defendant denied that he was the male participant to the sexual act. The prosecutrix said that he was the perpetrator of the act, and her mother testified to an admission by him to that effect. The testimony of other witnesses developed the probability of access on the night of the alleged ravishing. It is evident, we think, that the state not only made a submissible case for the determination of the jury, but that the evidence developed the probability of defendant's guilt. With this situation confronting us, we may not usurp the function of the jury as the trier of the facts. State v. Socwell (Mo. Sup.) 300 S. W. 680.

II. Defendant complains of the action of the trial court in permitting the circuit attorney to indorse four prospective witnesses and their addresses on the indictment when the cases were called for trial on January 17, 1927, without granting defendant a continuance. Two of said witnesses only testified at the trial on January 20, 1927. The purport of their testimony was that defendant, on October 18, 1926, called at their home during the progress or just subsequent to the first trial, and inquired of Lillian Fohrman whether anything happened to the prosecutrix on a certain occasion when they were out together. Lillian denied that anything happened. She and her mother stated that defendant said that he would pay Lillian well if she would go to court and testify that something happened to the prosecutrix on the night alluded to. Defendant, on taking the stand, admitted that he visited Lillian as related, and said she denied that anything happened to the prosecutrix on that occasion. He denied an offer to pay her.

In view of the course pursued and the result thereof, we are unable to conclude that prejudicial error obtained, because the court refused defendant a continuance. While section 3889, Revised Statutes 1919, prescribes that the names of all material witnesses must be indorsed upon the indictment, it also provides that other witnesses may be subpœnaed or sworn by the state. Whether the statute refers only to witnesses appearing before the grand jury, we need not decide. The defendant had at least two days to investigate and consult the witnesses, which it is not made to appear was an unreasonable time for that purpose. Moreover, defendant's testimony shows that he approached, more than a year previous to the trial, the witnesses testifying for the state regarding their knowledge of certain facts, and it is not shown that he could have controverted their statements to a greater extent than was done. The record does not develop that the failure to indorse the names of witnesses on the indictment earlier was the result of trickery or deception. However, we disapprove of the course of the circuit attorney in...