State v. Loness

• Decision Date: 18 February 1922
• Docket Number: No. 23019.,23019.
• Citation: 238 S.W. 112
• Parties: STATE v. LONESS.
• Court: Missouri Supreme Court

238 S.W. 112

STATE v. LONESS.

No. 23019.

Supreme Court of Missouri, Division No. 2.

February 18, 1922.

Appeal from Circuit Court, Wayne County; E. M. Dearing, Judge.

S. G. Loness was convicted of rape upon a girl 14 years of age, and he appeals. Affirmed.

On September 18, 1919, the prosecuting attorney of Wayne county, Mo., filed, in the circuit court of said county an information charging defendant with having raped Allene Karn, a female 14 years of age, etc. Defendant waived a formal arraignment, entered a plea of not guilty, and, on August 4, 1920, the jury before whom the case was tried returned into the circuit court aforesaid the following verdict:

"We, the jury in the above-entitled cause, find the defendant, Sam G. Loness, guilty as charged in the information in this case, and we fix his punishment therefor at five years in the penitentiary.

                        "Pole Myers, Foreman of the Jury."
                

State's Evidence.

It is conceded by appellant in his brief that the statement made by counsel for the state is correct, except as to matters pointed out by appellant. We have therefore adopted the statement of the Attorney General, with the above corrections made therein, which reads, in substance, as follows:

The evidence for the state tends to show that during May, 1919, Allene Karn, then 14 years of age, lived with her father and mother, George and Delia Karn, in Piedmont, Wayne county, Mo.; that the mother did laundry work for people in said city, including the defendant; and his wife; that it was customary for Allene and her sister to call at the homes of various people for laundry and to carry the same to their home; that after the clothes were laundered by Mrs. Karn, Allene and her sister delivered the same to the respective owners; that about 3 o'clock p. m. during the middle of May 1919, said Allene Karn delivered some laundry at the home of defendant in said city; that she knocked on defendant's kitchen door, was admitted by him, placed the laundry on the table, asked for defendant's wife, and was told by him that she was out of the city; that defendant's wife, who was blind, engaged in blind activities, which called her from home for long periods of time; that she had been absent from her home during April and May, 1919; that after prosecutrix placed said laundry on the table, and started to leave the kitchen, the defendant forcibly seized her by the throat, forced her to the floor on her back, and there had sexual intercourse with her; that he threatened to kill her if she told any one about what he had done; that she told no one about the assault until September, 1919, when her mother became suspicious of her condition and caused her to be examined by a physician, who found her to be pregnant; that she gave birth to a child on February 5, 1920.

On cross-examination of Allene's mother it was, shown, that prosecutrix was an illegitimate child. Aside from this, no other evidence was introduced tending to show that either Allene or the mother bore a bad reputation in that community.

Defendant's Evidence.

Defendant testified that he never was intimate with the prosecutrix at any time. He produced some evidence tending to show that neither he nor his wife had Mrs. Karn do any laundry work for them during the months of April or May, 1919, but, on the contrary, that a sister of defendant's wife was at his home, and did the laundry work during said time. Evidence was also introduced by defendant, tending to show that his wife was at home during the months of April and May, 1919, and that the prosecutrix did not deliver any laundry at defendant's home during the month of May, 1919.

Rebuttal.

The state contradicted defendant in rebuttal, by showing that he admitted to two witnesses, while in custody, that he had scuffled with prosecutrix, but did her no harm.

The instructions and rulings of the court, as far as necessary, will be considered later. Defendant filed motions for a new trial and in arrest of judgment. Both motions were overruled, and the cause appealed by him to this court.

O. L. Munger and A. O. Daniel, both of Piedmont, for appellant.

Jesse W. Barrett, Atty. Gen. (R. W. Otto, of Washington, Mo., of counsel), for the State.

BAILEY, C. (after stating the facts as above).

1. Appellant contends that the verdict of the jury was against the evidence, and against the weight of the evidence. It was the peculiar province of the jury to pass upon the weight of the evidence. We are satisfied from an examination of the record before us that the state produced substantial testimony tending to show that defendant was guilty of the crime charged against him in the information. The above contention is accordingly overruled. State v. Jenkins (Mo. Sup.) 225 S. W. loc. cit. 989; State v. Belknap (Mo. Sup.) 221 S. W. loc. cit. 45; State v. Hughes, 258 Mo. loc. cit. 272, 167 S. W. 529; State v. Pollard, 174 Mo. 607, 74 S. W. 969.

2. It is insisted by appellant that the testimony of John Rhodes and Abner Barron in rebuttal should have been excluded. Turning to the direct evidence of defendant in chief, we find that the following testimony was brought out by his own attorneys:

"Q. Do you know whether or not this little girl (prosecutrix) ever did bring home your washing? A. Yes, sir; she has been there at times.

"Q. Before or after this? A. Before.

"Q. I will ask you to state, Sam, whether or not, at any time, before the month of May, 1919, or after the month of May, 1919, you ever laid your hands on this child in your life? A. No, sir.

"Q. Did you ever do anything like that? A. No, sir."

On cross-examination defendant gave the following testimony, without objection:

"Q. Do you know Abner Barron? A. No, sir.

"Q. He is the clerk of the circuit court, you know the man who lives here in Greenville? A. Yes, sir.

"Q. You told Abner Barron you at many times had scuffled with the Karn girl? A. No, sir; I did not.

"Q. Did you tell him that while you were over here in jail? A. No, sir."

The above cross-examination, was conducted without objection, and related to the same matter referred to by defendant in chief. In view of the defendant's direct testimony, above quoted, it was proper to ask him if he had not made the above statements to Rhodes and Barron, even if a valid objection had been made. State v. Likens (Mo. Sup.) 231 S. W. loc. cit. 580; State v. Smith (Mo. Sup.) 228 S. W. loc. cit. 1061; State v. Foley, 247 Mo. loc. cit. 636-638, 153 S. W. 1010. After the above questions had been fully answered without protest or objection, the defendant's counsel then informed the court they objected to said evidence because it was immaterial. This objection came too late, and was properly overruled. State v. Levy, 262 Mo. loc. cit. 191, 170 S. W. 1114; State v. Castleton, 255 Mo. loc. cit. 208, 164 S. W. 492; State v. Wellman, 253 Mo. loc. cit. 314, 161 S. W. 795; State v. Ferrell, 246 Mo. loc. cit. 331, 152 S. W. 33; State v. Colvin, 226 Mo. loc. cit. 490, 126 S. W. 448; State v. Crone, 209 Mo. loc. cit. 330, 108 S. W. 555; State v. Pyles, 206 Mo. loc. cit. 632, 105 S. W. 613, and cases cited. Aside from the foregoing,...