State v. Lee
| Decision Date | 11 July 1966 |
| Docket Number | No. 1,No. 51639,51639,1 |
| Citation | 404 S.W.2d 740 |
| Parties | STATE of Missouri, Respondent, v. Charles Edward LEE, Donald Hunt, Richard Leo Carpenter, Donald Wayne Lee, Bill Powell, and Donald Ray Hayes, Appellants |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jefferson City, Ben J. Martin, Sp. Asst. Atty. Gen., Springfield, for respondent.
Powell, Jones & Ringer, Dexter, for appellants.
Each of the six defendants was found guilty of statutory rape and the punishment of each was fixed by the jury at two years' imprisonment in the penitentiary. See § 559.260 (). All of them have appealed from the judgments entered.
The defendants, young men ranging in ages from 18 to 21 years, lived in the vicinity of Dudley, Missouri. The events here involved occurred in or near Dudley on August 27, 1964. The offenses charged were alleged to have occurred in a little white house located about one-half mile south of Dudley which the defendants referred to as their clubhouse. It was a one-room structure in which they had placed a couch which could be made into a bed, a table, and some chairs. The windows and doors had fallen from or had been removed from the building. The prosecuting witness, whom we will refer to as Becky, was barely 15 years old--the evidence indicating that she was born on July 30, 1949. She lived with her grandmother, Jennie Pearson, and her sister, Sharon, in the southeast section of Dudley.
Becky testified that on the evening in question she left home at 7:15 and started to walk to church; that there were no sidewalks and she was walking along the edge of the street; that when she reached a point near the Mallory residence a Chevrolet car driven by defendant Hayes stopped near her; that defendant Carpenter jumped out of the car, picked her up, and threw her into the seat; that Carpenter told her to 'shut her mouth,' and directed Hayes to 'go straight and hit the blacktop and keep your lights turned off'; that Hayes drove the car to the little white house south of Dudley where they stopped; that Carpenter dragged her into the house and threw her onto the couch; that he then pulled off her underpants, held both of her hands, 'put his privates in mine,' and engaged in sexual intercourse; that when he got up he started for the door and she put her pants on and started to leave the room just behind him when Charles Lee came in the door; that Charles then threw her on the couch, pulled off her pants, 'put his privates in mine' and engaged in sexual intercourse for a period of time; that when Charles got up and started towards the door his brother, Donald Lee, came in and started to take her back to the couch but she got away from him and ran out the door; that she then ran north up the road towards Dudley with all of the defendants chasing her; that Donald Hunt grabbed her and took her back to the driveway in front of the little white house. When he released her she again started running toward Dudley; that she left the road and cut across a bean field; that someone started the car and drove it down the road shining a spotlight over the bean field; that she escaped and shortly thereafter arrived at her home; that no one was there so she locked the door, pulled down the blinds, and went to the bathroom and started washing herself.
Shortly after Becky arrived her sister, accompanied by her date, Wilson Peck (whom she married prior to trial), arrived at the house and upon being questioned by her sister Becky told her what had happened. Becky was then taken to the office of Dr. Northington in Dexter. The doctor testified that she was highly nervous and that he gave her a sedative; that he then took some secretion from her vagina which he delivered to Mr. Kenner, a laboratory technician; that Kenner prepared slides which he later examined and found that the fluid contained mobile male sperm. Similar testimony relating to the contents of the seminal fluid was given by Mr. Kenner.
All of the defendants testified. Defendant Hayes testified that he had spent the day in question working on Carpenter's car; that during that afternoon he had seen Becky and she indicated that she had something she wanted to tell him; that early in the evening he and Carpenter had driven to the home of the Lee brothers; that while there he saw Becky walking down the road; that he and Carpenter got in Carpenter's car (Hayes driving) and that when they overtook Becky, Carpenter got out of the car and Becky got into the car, seated between him and Carpenter, and they then drove to the clubhouse; that upon arriving there he and Becky got out of the car and went into the house and Carpenter drove away; that they sat on the couch and Becky then told him that one Sue Temples had said she wanted to date him. Hayes testified that he did not touch Becky and of course did not have intercourse with her; that shortly after they entered the house the Lee brothers, Bill Powell, and Donald Hunt arrived at the clubhouse and at that point Becky said she had to leave and did so. About ten minutes later Carpenter returned and a short time thereafter they all got in Carpenter's car and drove into Dudley.
Carpenter's testimony was very similar to that of Hayes except, in addition, he stated that when he left the clubhouse he drove to the home of his mother-in-law a short distance away to see if his wife (from whom he was separated) was at home; that when he returned to the clubhouse Becky had gone. He denied having had intercourse with Becky.
The testimony of the other four defendants was substantially the same. They stated that they did not know that Hayes and Carpenter were taking Becky to the clubhouse; that after they had finished eating some sandwiches at the Lee home they walked to the clubhouse intending to sweep it out; that when they arrived Hayes and Becky were seated on the couch and that almost immediately Becky stated that she had to go home and got up and walked out. Each of these defendants denied having had intercourse with Becky or having chased her or touched her in any way. They stated that after Carpenter returned to the clubhouse they stood around and talked a few minutes and then all got in the car and drove into Dudley.
Additional testimony will be stated in our discussion of points briefed.
The first point briefed is that the trial court erred in overruling defendants' motion to quash the information which motion was based upon the fact that no indictment had been returned against defendants by a grand jury. It is said that such was required by the Fifth Amendment of the U.S. Constitution which provides, in part, that '(n)o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.' Defendants concede that said amendment has generally been held to be a restriction on the federal government and not on the states, but they say that the Fourteenth Amendment has recently been held to apply various restrictions, such as those contained in a number of the first ten amendments, to the states. For example, see Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106.
In the case of Hurtado v. People of State of California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232, it was expressly decided that the various provisions of the Federal Constitution did not require that the states prosecute capital or other infamous crimes by indictment rather than by information. We have also decided that issue in the same manner in State v. Waller, Mo.Sup., 382 S.W.2d 668(4), and in State v. Cooper, Mo.Sup., 344 S.W.2d 72(1--3). Upon the authority of the cases cited in this paragraph we rule this contention adversely to defendants.
In 1963 the General Assembly enacted § 545.885 which provides, in part, as follows: 'When two or more defendants are jointly charged with an offense under sections 559.260, 559.270 or 563.230, RSMo, they shall be tried jointly or separately in the discretion of the court; except that if there is evidence that would be admissible against one defendant, but inadmissible as to the defendants if all are tried jointly, the defendant against whom the evidence is admissible, upon timely motion made by any other defendant against whom the evidence is inadmissible, shall be tried separately.' To like effect, see also S.Ct.Rule 25.07(b), V.A.M.R. In accord with the foregoing the defendants filed a joint motion seeking a separate trial for each one of them. They here complain of the alleged error of the court in overruling said motion.
In support of said contention defendants state that the provisions of the foregoing statute (and rule) constitute an arbitrary and unreasonable classification and hence are violative of the equal protection clause of the Federal Constitution (§ 1, Fourteenth Amendment) and of the somewhat similar provision of the Missouri Constitution, V.A.M.S. (§ 2, Art. I). Specifically, defendants say that it is a denial of equal protection to provide that persons charged with rape and sodomy should be entitled to a separate trial in the discretion of the court while those jointly charged with other felonies are entitled to a separate trial, as a matter of right, upon request. See § 545.880, S.Ct.Rule 25.07(a).
It is suggested in both briefs that the enactment of the provision in question was an effort to avoid the necessity of prosecuting witnesses making multiple appearances in court in those cases. That would appear to be a sound reason for its adoption. Unquestionably, the trial of a rape or sodomy case is an ordeal to the prosecuting witness who undoubtedly is subjected to a great deal of emotional suffering and public embarrassment. If a prosecuting witness knows that she will be required to make many such appearances she may refuse to make a complaint or to otherwise co-operate with prosecuting officials and hence the...
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