State v. Lovitt
| Decision Date | 09 May 1912 |
| Citation | 147 S.W. 484,243 Mo. 510 |
| Parties | THE STATE v. HORACE LOVITT, Appellant |
| Court | Missouri Supreme Court |
Appeal from Harrison Circuit Court. -- Hon. G. W. Wannamaker, Judge.
Affirmed.
A. L Hughes and Garland Wilson for appellant.
(1) The supplied information in this case was supplied without any showing being made that it was a true copy of the original information and therefore it is a nullity. State v Simpson, 67 Mo. 647; State v. Burks, 132 Mo 363; State v. McCarver, 194 Mo. 717; State v. Wilson, 200 Mo. 28; Jordan v. Vaughn, 104 Mo.App. 112. Moreover, the original information having been found, the reason for the supplied information ceases and it becomes waste paper. The original information charges the offense to have been committed "on the 19th day of November, 1909," while the court instructed the jury that they should find defendant guilty if they believed that he committed the offense "on the 20th day of November, 1909." Clearly the information does not charge the offense which the court submitted to the jury. (2) The court erred in permitting improper cross examination of the defendant, which was of a highly prejudicial nature, and which did prejudice the jury. State v. Sigenthaler, 121 Mo.App. 510; McKern v. Calvert, 59 Mo. 243; State v. Thomas, 78 Mo. 343; State v. Palmer, 88 Mo. 568; State v. Bulla, 89 Mo. 595; State v. Taylor, 98 Mo. 240; State v. Grant, 144 Mo. 56; State v. Hudspeth, 150 Mo. 31; State v. Hathorn, 166 Mo. 229; State v. Kyle, 177 Mo. 659; State v. Candle, 174 Mo. 388; State v. Spivey, 191 Mo. 87; State v. Trott, 36 Mo.App. 29; State v. Fullerton, 90 Mo.App. 411; Schaefer v. Railroad, 98 Mo.App. 454; R. S. 1909, sec. 5242. (3) The court erred in permitting the State to bolster up the prosecuting witness by proving her general reputation for morality, and for chastity and virtue, to be good when her character had not been attacked. State v. Thomas, 78 Mo. 343; State v. Patrick, 107 Mo. 147. (4) Instruction three, given at the request of the State, is erroneous. State v. Helton, 234 Mo. 564; Kelly's Crim. Law, pp. 359-360; State v. Yocum, 117 Mo. 625; State v. Whitsett, 111 Mo. 202; State v. Platner, 196 Mo. 132. (5) The verdict in itself is not sufficient on which to predicate a judgment. State v. Pierce, 136 Mo. 34; State v. Rowe, 142 Mo. 439; State v. Jones, 168 Mo. 398; State v. DeWitt, 186 Mo. 69; Clark on Crim. Prac., p. 485. (6) There was no evidence upon which to predicate an instruction for assault with intent to commit rape. State v. Priestley, 74 Mo. 24; State v. Owsley, 102 Mo. 678; State v. Scholl, 130 Mo. 396; State v. Hayden, 141 Mo. 311.
Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
(1) There was ample evidence to take the case to the jury, and the sufficiency of the evidence, as well as the conflict in same, must be determined by the jury. (2) The fifth ground of appellant's motion for new trial asserts that the court committed error in permitting the State to compel appellant, while testifying, to testify as to whether he had abandoned a former wife. There could be no prejudicial error in this. Appellant took the stand and the jury were entitled to know who he was, and also his history. The cross-examination of appellant is not confined to a categorical review of his examination in chief. State v. Miller, 156 Mo. 76; State v. Feeley, 194 Mo. 301. (3) It will be presumed, in the absence of evidence, that the supplied information was a copy of the original information. State v. Walker, 167 Mo. 366; Railroad v. Holliday, 131 Mo. 440; Campbell v. Greer, 197 Mo. 463. A lost indictment, like any other record, may be supplied by the court of whose record it constitutes a part. State v. Burks, 132 Mo. 367; State v. Simpson, 64 Mo. 647; State v. Paul, 87 Mo.App. 47; State v. Smith, 71 Mo. 46; State v. McCarver, 194 Mo. 717. The supplied information was the charge upon which appellant was arraigned, entered his plea of not guilty, tried, and upon which verdict was rendered, the penalty assessed, and judgment of sentence pronounced. If any part of the record or proceedings be lost or stolen, the deficiency may be supplied. R. S. 1909, sec. 5060; 1 Chitty's Crim. Law, 722; Hughes' Crim. Law and Proc., sec. 2874, p. 751.
Upon an information charging him with the crime of assault with intent to rape, appellant was tried at the January term, 1910, of the circuit court of Harrison county, found guilty, sentenced to imprisonment in the penitentiary for a term of two years, and from such sentence and judgment appealed to this court.
The evidence for the State tended to show the following facts:
Mattie Miller, the prosecutrix, a married woman twenty-two years of age, with her husband Joe Miller and their two children, lived in the town of Andover in Harrison county. The defendant, a married man twenty-eight years old, lived near Andover, and he and prosecutrix had been well acquainted for a number of years. On November 20, 1909, about 6:30 p. m., defendant drove into Andover in a two-horse buggy. He stopped at the Miller home and inquired for the husband. Being informed by prosecutrix that he had gone to a store, defendant drove to the store and asked the husband to go with him to Lamoni, Iowa, a town about six miles distant. The invitation was accepted and after Miller had gone to his home and told his wife where he was going, the two men started to Lamoni in defendant's buggy. When they were within about a mile of Lamoni defendant said he wanted to see some person who lived northeast of the town and suggested that Miller walk the remainder of the distance to Lamoni and there wait for him. Miller then walked on to Lamoni, and the defendant, after going only a short distance to the north, drove back to Andover and immediately went to the Miller home, arriving there about eight o'clock p. m. There was no one in the house except prosecutrix and her children. He entered the house without knocking. Prosecutrix asked where her husband was and defendant answered that he was at Ike Hampton's drunk. Prosecutrix said, "Well, you had better get out of here and bring him home." Defendant said he was going home and went out of the house. Prosecutrix then had her baby in her arms, attempting to rock it to sleep. The other child, then a little more than two years old, was in bed asleep. In a few minutes the baby went to sleep and prosecutrix put it in bed and went out into the yard. Defendant was in the yard and said, "Hello." She recognized his voice and being frightened by finding him still on the premises ran into the house. The defendant followed her and as soon as he was inside the house told her, in language that need not be reproduced, that he had driven all the way from Lamoni for the purpose of having intercourse with her and that he would accomplish his purpose or kill her. She replied that he would do nothing of the kind. Thereupon he threw his arms about her and dragged her into the kitchen. She demanded repeatedly that he release her but he paid no heed to her demands. In the struggle that took place while he was dragging her into the kitchen she fought and resisted him in every way she could, by kicking him, scratching him and pulling his hair. Part of the time she was screaming. After a short struggle in the kitchen she freed herself and ran back to the front room with the defendant following her. There were only two rooms in the house and the children were in bed in the front room. They had been wakened by the noise of the struggle and were crying. The oldest one was trying to climb out of bed and get to its mother. Prosecutrix then threatened to shoot defendant unless he left the house and told him she would tell her husband what he had done. He said: Defendant then left the house, and as he was leaving he paused in the door and said: "If it wasn't for those two children yelling like that I would show you what I could do to you." He then drove back to Lamoni, found Miller there waiting for him, and together they returned to Andover.
The defendant introduced evidence tending to show the following facts:
Defendant and prosecutrix, before either was married, lived on adjoining farms. Improper relations existed between them then and such relations continued after both were married. On the evening in question the defendant stopped at the Miller house the first time to arrange a meeting with prosecutrix that evening, and was told by her that such a meeting would be agreeable if he could get her husband out of the way. He asked the husband to go to Lamoni with him, took him to a point near that town, promised to meet him in Lamoni later in the evening, and then drove back to Andover for the purpose of meeting prosecutrix. When he arrived at the home of prosecutrix she said she was afraid they were being watched and that he had better leave and meet her some other time. They kissed each other two or three times, but defendant made no assault upon prosecutrix, and did not make the statements testified to by her as to his purpose in coming back from Lamoni and his intention to carry out such purpose. When it was suggested that they were probably being watched defendant left the house, drove back to Lamoni, found Miller there waiting for him and brought him back home.
The State, in rebuttal, introduced several witnesses who testified that prosecutrix bore a good reputation for virtue and chastity.
The court gave instructions authorizing a conviction of assault with intent to rape, or common assault, or an acquittal.
The jury returned the...
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