State v. Lindsey

• Decision Date: 05 March 1935
• Docket Number: No. 33795.,33795.
• Citation: 80 S.W.2d 123
• Parties: STATE v. LINDSEY.
• Court: Missouri Supreme Court

80 S.W.2d 123

STATE v. LINDSEY.

No. 33795.

Supreme Court of Missouri, Division No. 2.

March 5, 1935.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

William Lindsey was convicted of forcible rape, and he appeals.

Affirmed.

Emanuel Williams, of St. Louis, for appellant.

Roy McKittrick, Atty. Gen., and Wm. W. Barnes, Asst. Atty. Gen., for the State.

COOLEY, Commissioner.

Charged by information in the circuit court of the city of St. Louis with the crime of forcible rape, alleged to have been committed in said city on October 25, 1932, the defendant was tried, convicted, and sentenced to life imprisonment in the penitentiary, and has appealed. Defendant is a negro; the prosecutrix a white woman. The state's evidence tended to prove the following:

On the evening in question the prosecutrix, a young married woman, had been to church, and after church had stopped for a short time at the home of a friend, a Mrs. Harrison, living at 2805 Cass avenue, an east and west street. About 10:20 p. m. prosecutrix started alone from Mrs. Harrison's to her own home, walking westward on the north side of Cass avenue. At No. 2915 Cass avenue, about a block west of Mrs. Harrison's, there was a brick restaurant building on the north side of said avenue fronting south and extending out to the sidewalk line. The building next west of the restaurant, No. 2917 Cass avenue, was a residence; its front being about seven feet back from the sidewalk. Between those two buildings was a passageway, called a gangway, some two and a half feet wide, extending northward to a yard or open space in the rear of the residence. When prosecutrix was about even with the west wall of the restaurant, the defendant, who had been west of that building and concealed by it from her view, stepped out in front of and very near her. It was drizzling rain, but the street and the space west of that part of the restaurant which projected beyond the residence were well lighted, and prosecutrix had a good view of defendant, who wore no head covering. He first asked her how much money she had, to which she replied that she had none. Defendant said: "Well, don't you holler. Don't say a word. If you holler I will blow your brains clear through your head." At that time he had his right hand in his pocket, which prosecutrix testified showed the imprint of a pistol. He then took prosecutrix by the collar, shoved her against the west wall of the restaurant, and asked if she had anything with which he could tie her, to which she replied in the negative. Then, discovering that prosecutrix' raincoat had a belt, he removed that belt and pushed prosecutrix through the gangway to the yard at the rear of No. 2917, and under some stairs which were there, where he tied her hands with her raincoat belt, again threatening to kill her if she made outcry. After looking around to see if any one was in sight, defendant then opened a trapdoor leading into the basement or cellar of No. 2917, took prosecutrix by the collar, and ordered her to "get down in there," which she did, descending the two or three steps into the basement. Defendant then closed the door, took prosecutrix by the shoulders, and forced her to the floor, saying to her that he was going to take his gun out of his pocket and lay it on the floor beside him, and that if she made a noise he would kill her. He first felt her hose, she supposed for money, then tore off her underclothes and ravished her. She testified that she resisted to the extent of her ability; that he choked her and continued to threaten her if she made outcry; that she did not cry out because of such threats and because she was so frightened all of the time that she could not. When defendant had accomplished his purpose, he removed the rubber overshoe, slipper, and stocking from one of prosecutrix' feet, and with the stocking bound her ankles together, leaving her tied hand and foot, saying to her as he departed: "When I get out of here don't you dare tell it and you wait until I am gone before you leave."

When defendant had left, prosecutrix with some difficulty succeeded in stretching the stocking that bound her ankles enough to release her feet. She was unable to extricate her hands from their bonds. She made her way as quickly as possible back to Mrs. Harrison's home and told Mrs. Harrison what had happened to her. She arrived there, as Mrs. Harrison testified, in a highly nervous, hysterical condition, with one foot bare, her hands still bound, and with her clothing soiled and disheveled. Prosecutrix called her relatives and her husband next morning when she had sufficiently recovered from the shock, and complaint was made to the police. That day prosecutrix' overshoe, slipper, stocking, and hat were found in the basement where the assault had occurred. Defendant was arrested on October 30th on the description furnished to the officers by prosecutrix. She did not know his name, never having seen him prior to the occasion of the assault. She identified him at the police station and at the trial as her assailant. It is needless to give further details of the offense or of the corroborating circumstances shown in evidence. The state's evidence clearly made out a case of forcible rape.

The defense was an alibi supported by the testimony of defendant himself and that of several witnesses. Defendant has filed no brief in this court, and we look to his motion for new trial for the points relied upon for reversal.

I. It is charged that the information is fatally defective, "in that it failed to properly charge the crime of rape." It charges that defendant had been previously convicted in the court of common pleas of Williams county, Ohio, of the offense of carrying concealed weapons, sentenced to imprisonment in the reformatory of that state for a term of one to three years, and that after his discharge from said reformatory he committed the rape herein charged. The alleged former conviction was not proved and was not submitted to the jury. It may be disregarded. In charging the crime of rape, the information follows substantially the form that has often been approved by this court. See State v. Holman, 230 Mo. 653, 132 S. W. 695. It is sufficient.

II. It is alleged in the motion for new trial that the verdict is against the evidence because "the tying of a person's hands in the manner and form as described by the (prosecuting) witness would exclude the performance of a sexual intercourse."

It would seem that the tying of prosecutrix' hands in the manner described by her in her testimony, instead of rendering her ravishment impossible, would tend to lessen her ability to offer effective resistance and to aid defendant in the accomplishment of his purpose. We think it obvious that this contention is without merit.

Akin to this assignment is the further assignment that the verdict is against the evidence, "in that the evidence discloses that the prosecuting witness did not resist to the best of her efforts the alleged assault upon her." It is further asserted that there was no evidence of penetration.

Without setting out the evidence in detail it is sufficient to say that prosecutrix' testimony was to the effect that she resisted to the extent of her ability, with her hands tied as they were, and the circumstances and her condition when she reached Mrs. Harrison's home tend to corroborate her. Moreover, she was threatened with death if she made outcry. The evidence was ample to show that the act was accomplished against her will and that she resisted to the utmost. On the question of penetration she testified specifically, in answer to questions, that the defendant got on top of her and put his "private" in her vagina. She was not cross-examined on that point. The proof of penetration was sufficient.

III. Complaint is made of the admission in evidence of certain photographs. These were photographs taken the day before the trial, showing the street and the fronts of the buildings at and about the place where prosecutrix was stopped by defendant, with the light standards thereabout, designed evidently to corroborate prosecutrix' testimony that there was sufficient light for her to see defendant's features and be able thereafter to recognize him. The photographs also showed the gangway leading to the rear of the residence No. 2917, and the open space, the stairs and trapdoor in the rear thereof. The only objection made to these photographs when they were offered was that they had "not been properly identified." Examination of the record convinces us that the objection was not good.

It is further urged in the motion for new trial that it was not sufficiently shown that the conditions portrayed were the same when the photographs were taken as when the offense is alleged to have been committed. We think this ground of objection, also, is not well founded. The state's evidence showed that the physical conditions were substantially the same and that at the time of the offense the lights were on; that there was ample light at the place in question by which to see a person's features clearly. For another reason we think this latter ground of objection cannot now avail defendant, viz., it was not called to the trial court's attention when the photographs were offered.

In State v. McGuire, 327 Mo. 1176, 1186, 39 S.W.(2d) 523, 526, we said: "It is well-settled that objections must be specific and call the attention of the court directly to the ground upon which the objection is made, and it is also settled that appellant will not be permitted to broaden the scope of his objection on appeal beyond that made in the trial court" — citing cases.

IV. It is assigned as error that the court permitted the prosecuting attorney, just before the trial began, to indorse on the information the names of two additional witnesses, Kullenberg and Harris. Appellant makes the further assignment that the court erred in permitting said Kullenberg and two...