State v. Lawhorn

• Decision Date: 20 May 1913
• Citation: 157 S.W. 344
• Parties: STATE v. LAWHORN.
• Court: Missouri Supreme Court

157 S.W. 344

STATE v. LAWHORN.

Supreme Court of Missouri, Division No. 2.

May 20, 1913.

1. INDICTMENT AND INFORMATION (§ 41) — REQUISITES — VERIFICATION OR ACCOMPANYING AFFIDAVITS.

Under Rev. St. 1909, § 5057, providing that all informations shall be signed by the prosecuting attorney and be verified by his oath or by that of some person competent to testify as a witness in the case or supported by the affidavit of such person filed with the information, and section 5058, providing that any person having knowledge of the commission of a crime may make his affidavit setting forth the offense and the person charged therewith and file the same with the clerk of the court having jurisdiction of the offense for the use of the prosecuting attorney who shall file information upon such affidavit, a verified complaint filed by prosecutrix with a justice before whom a preliminary hearing and a commitment was had, and which affidavit was filed in the office of the clerk of the circuit court by the justice prior to the filing of information thereon, was not a sufficient verification of the information thereafter filed.

2. CRIMINAL LAW (§ 223) — PRELIMINARY HEARING — NECESSITY.

Where the maximum punishment under a charge was that of death, it was necessary to allow a preliminary hearing to defendant.

3. RAPE (§ 48) — EVIDENCE — COMPLAINT AND DECLARATIONS.

In a prosecution for rape, the particular facts of the crime as related by the prosecutrix at the time of or after making complaint of the injury are not admissible in evidence, except when drawn from the complainant on cross-examination or introduced as confirmatory of her testimony after testimony has been introduced tending to impeach her.

4. RAPE (§ 48) — CORROBORATIVE EVIDENCE — COMPLAINT.

The fact of making prompt complaint is always admissible as an element of corroboration.

5. RAPE (§ 51) — SUFFICIENCY OF EVIDENCE.

Evidence in a prosecution for rape held not sufficient to sustain a conviction.

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

Ed Lawhorn was convicted of rape, and he appeals. Reversed and remanded for new trial.

Defendant was tried in the circuit court of Shannon county on the 9th day of January, 1912, upon the charge of rape. The triers of fact found him guilty thereof and assessed his punishment at imprisonment in the penitentiary for a term of five years. From the sentence and judgment of the court imposed in pursuance of the jury's verdict, he has, after the usual motions for a new trial and in arrest of judgment, appealed to this court.

The information upon which this prosecution is based is, caption omitted, as follows: "G. S. Sizemore, prosecuting attorney, within and for the county of Shannon, and state of Missouri, under his oath of office and upon the information of the affidavit of Dorothy Benson herein filed, informs the court that Ed Lawhorn on or about the 27th day of August, 1910, at the said county of Shannon, state of Missouri, then and there in and upon one Dorothy Benson, unlawfully, violently and feloniously did make an assault, and her the said Dorothy Benson, then and there, unlawfully, forcibly and against her will, feloniously did rape, ravish and carnally know; against the peace and dignity of the state." This information was not verified by the prosecuting attorney, though, as appears from the allegations therein, it was based upon a complaint, duly verified, by the prosecutrix and filed with one H. C. Meade, a justice of the peace of Shannon county. It appears that upon the filing of this complaint with the said justice of the peace a warrant was duly issued, and after the proper procedure pursuant to statute, a preliminary trial was accorded defendant and he was held on bail to await the action of the grand jury or the filing against him of an information. The transcript of the justice, together with the verified complaint, was filed in the office of the clerk of the circuit court by the justice of the peace prior to the filing of the information herein. No supporting affidavit, and in fact no affidavit other than the one filed with the justice of the peace in verification of the complaint aforesaid, was ever filed in the circuit court, nor was the information verified either by the prosecuting attorney or by any one else. A motion to quash the information was filed by the defendant and by the court overruled, prior to his trial. In this motion to quash the lack of statutory verification of the information was strenuously urged, and has been properly preserved for review, and is here urged by the defendant.

The facts shown upon the trial on the part of the state are substantially as follows: On August 27, 1910, some sort of a picnic occurred at West Eminence, in Shannon county. Present at this picnic were Dorothy Benson, the prosecutrix; Ed Lawhorn, the defendant; Jesse Benson, the father of prosecutrix; Joe Mahan, her uncle; Mrs. Deacon, an acquaintance of prosecutrix; Cynthia McDowell, also an acquaintance of prosecutrix; and others, but how many others, or how numerous were the others, does not appear from the record. Defendant Lawhorn was at work at some sort of a stand, then being operated upon the picnic grounds by one Daniel Emmons. Some time during the day prosecutrix went to the stand where defendant was at work and had some conversation with him in the presence of her friend Cynthia McDowell. Prosecutrix says that defendant inquired of her how long she had been there, and whether or not she would be back again that night, and that he "set up the lemonade." Defendant's statement of this conversation differs from that of prosecutrix, but neither of them is corroborated, as one of them might well have been, by Cynthia McDowell; the latter not being called as a witness. Shortly after this conversation prosecutrix left the picnic ground for the purpose of going a little distance away into the brush, ostensibly to attend to a call of nature. Leaving the picnic ground, she passed along an old road, near which and about 50 yards distant from the picnic ground she passed her uncle, Joe Mahan, who was about his wagon, in which he seems to have had a sick child. While she was talking to her uncle, defendant came along the same way, passed her, and continued in the direction in which she was going, walking ahead of her. After leaving her uncle, and after going some 20 or 30 steps, she says that she was seized by the defendant, who said to her, "I have got you now," and pulled and dragged her on up the road a distance of some 270 yards, to a field which he entered (still pulling her along with him) by opening a large gate, and after going a short distance into the field where there seems to have been weeds and brush grown up, he threw her down and had sexual intercourse with her at least twice — perhaps five times — though the number of these acts does not clearly appear from her testimony. The acts of alleged rape occurred some 350 or 400 yards from the picnic ground between 1 and 2 o'clock in the afternoon. While being pulled or dragged from the point mentioned, by defendant, she made no outcry and resisted only, as she says, by pulling back. In the act of copulation it became necessary to remove her drawers, which she says was done, and that after the acts were accomplished she put her drawers on and returned to the picnic grounds. Her testimony is to the effect that she resisted to her full strength and wept during the performance of the acts complained of; but the question of her resistance and the fact of her weeping are not corroborated, and rest upon her testimony alone. Upon her return to the picnic grounds, after the alleged rape, she went to her acquaintance, Mrs. Deacon, and told the latter that defendant had thrown her down. At this time, as Mrs. Deacon testifies, there was dirt upon her clothing, and a blood spot upon her left shoulder. She was not weeping then, nor does Mrs. Deacon say she appeared to have been weeping shortly previous, though this witness says her face was flushed. In her conversation with Mrs. Deacon she denied, or at least did not specifically state, that sexual intercourse had been consummated upon her person, but simply said that defendant "didn't do anything, but he tried to." Being advised by Mrs. Deacon to tell her father what had occurred, prosecutrix sought him out and did so. When she told her father about it she seems to have been crying. At the time of her conversation with Mrs. Deacon and also at the time of her talk with her father, her clothing was noticeably soiled and disarranged. At the time of the alleged rape prosecutrix says she was unwell. At the time of the occurrence of the act charged prosecutrix was almost 15 years of age, or 14 years and 10 months old, lacking three days. After prosecutrix's father was advised by her of the alleged acts of defendant, he went to defendant and asked him about what had occurred. Defendant denied knowing anything about it, or of having anything to do with prosecutrix.

During the examination of prosecutrix's father upon the trial he was asked this question: "Make a statement to the jury as to what she was doing and what she said to you at that time?" (That is at the time following prosecutrix's conversation with Mrs. Deacon and when she was telling her father of the alleged acts of the defendant.) Objected to by the defendant as hearsay; which objection was by the court overruled, to which ruling of the court the defendant excepted at the time. Thereupon the father of prosecutrix proceeded to detail not only what the latter had said to him, but what Mrs. Deacon had said to him in a conversation at which defendant was not present, nor within hearing. This is urged as error.

There is some testimony in the record as to the condition of the clothing of defendant and to the effect that the shirt which it is said he wore upon the day in question, but ownership of which is not as definitely shown as it...