State v. Marshall

• Decision Date: 04 September 1945
• Docket Number: 39450
• Parties: State v. Eskill Marshall, Appellant
• Court: Missouri Supreme Court

189 S.W.2d 301

354 Mo. 312

State v. Eskill Marshall, Appellant

No. 39450

Supreme Court of Missouri

September 4, 1945

Appeal from Jackson Circuit Court; Hon. Thomas J. Seehorn Judge.

Affirmed.

Louis A. Reale for appellant.

J E. Taylor, Attorney General, and Will F. Berry Jr., Assistant Attorney General, for respondent.

(1) The information in this case is sufficient in form and properly charges the crime of forcible rape. Sec. 4393, R.S. 1939; State v. Lindsay, 80 S.W.2d 123; State v. Holman, 230 Mo. 653, 132 S.W. 695. (2) The verdict is in proper form and responsive to the issues. State v. Cason, 252 S.W. 688. (3) The record in this case discloses that the defendant was formally arraigned, was granted allocution after verdict, and that sentence was imposed in conformity with the verdict. (4) The court did not err in overruling appellant's Assignments of Error Nos. 3, 6, 7, 8, 9, 21, 22 and 23, for the reason that such general assignments in appellant's motion for new trial are insufficient to preserve the alleged errors for review. Sec. 4125, R.S. 1939; State v. Martin, 317 Mo. 313, 295 S.W. 543; State v. Early, 49 S.W.2d 1060; State v. Scott, 214 Mo. 257, 113 S.W. 1069; State v. Golden, 330 Mo. 784, 51 S.W.2d 91; State v. Biven, 151 S.W.2d 1114; State v. Breeden, 180 S.W.2d 684. (5) The court did not err in overruling appellant's Assignments of Error Nos. 1, 2 and 31. Sec. 4393, R.S. 1939; State v. Lindsey, 80 S.W.2d 123; State v. Holman, 230 Mo. 653, 132 S.W. 695. (6) The court did not err in overruling appellant's Assignment of Error No. 4. State v. Jacobson, 348 Mo. 258, 152 S.W.2d 1061; State v. Willhite, 159 S.W.2d 768. (7) The court did not err in overruling appellant's Assignment of Error No. 5. State v. Egner, 317 Mo. 457, 296 S.W. 145. (8) The court did not err in overruling appellant's Assignment of Error No. 10. State v. Lindsey, 80 S.W.2d 123; State v. Willhite, 159 S.W.2d 768; State v. Thompson, 338 Mo. 897, 92 S.W.2d 892. (9) The court did not err in overruling appellant's Assignments of Error Nos. 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 27, 28 and 29. State v. Jacobson, 348 Mo. 258, 152 S.W.2d 1061; State v. Howard, 177 S.W.2d 616. (10) The court did not err in overruling appellant's Assignment of Error No. 24. State v. Breeden, 180 S.W.2d 684; State v. Nienaber, 347 Mo. 615, 148 S.W.2d 1024; State v. Jacobson, 348 Mo. 258, 152 S.W.2d 1061; State v. McGee, 336 Mo. 1082, 83 S.W.2d 98. (11) The court did not err in overruling appellant's Assignment of Error No. 25. State v. Sykes, 248 Mo. 708, 154 S.W. 1130; State v. Robinson, 117 Mo. 649, 23 S.W. 1066. (12) The court did not err in overruling appellant's Assignment of Error No. 26. State v. Grant, 98 S.W.2d 761. (13) The court did not err in overruling appellant's Assignment of Error No. 30. State v. Jacobson, 348 Mo. 258, 152 S.W.2d 1061.

OPINION

Ellison, P.J.

Appellant was convicted in the circuit court of Jackson County of forcible rape upon Edythe Irene Soma, a girl 18 years old, in violation of Sec. 4393. ^[1] The jury assessed his punishment at five years imprisonment in the penitentiary. He has filed no brief and we look to his motion for new trial in the circuit court for assignments of error on all matters of exception, as required by Sec. 4150.

We find no error in the record proper. The information is in a form approved in State v. Holman, 230 Mo. 653, 132 S.W. 695, that case being followed in State v. Lindsey (Mo. Div. 2), 80 S.W.2d 123, 125(1). The verdict is in the usual form. His motion for new trial had been heard and overruled before judgment and sentence were pronounced, and therefore allocution was not essential. Sec. 4103. But the record recites that the defendant "having nothing further to say" judgment and sentence were accordingly rendered. They are in due form. The motion for new trial contains 31 assignments of error, many of which were too indefinite to comply with the new trial statute, Sec. 4125. But we proceed with these, so far as reviewable, first stating the facts.

The prosecutrix had been employed as a domestic for about two years by a family then residing on West 70th Street in Kansas City. On the evening of Sunday, March 26, 1944, she had visited relatives; gone with friends to a dancing place out in the county; and returned on a bus to Fifteenth Street and Grand Avenue shortly after midnight, where she started walking west on the north side of Fifteenth Street two blocks to Main Street to take a Country Club streetcar back home.

Three young men on the other side of the street crossed over and began following her. By about the time she reached the first cross-street, Walnut, one of the men -- a dark complexioned fellow -- overtook her, walked beside her for about 20 feet and sought to engage her in conversation. When she reached the entrance to the alley extending north between Walnut and Main Streets, she felt a pair of hands in dark gloves go over her nose and mouth, and her purse was snatched. The appellant held her hands and dragged her into the alley for about 35 feet to a place where an unpaved offset, resulting from the unequal length of two abutting buildings, made a "little alcove." Photographs of the alley entrance and the spot just mentioned were introduced, and she identified the place shown in them.

She was shoved to the ground and the appellant had forcible sexual intercourse with her, the other man -- a light complexioned fellow -- pressing his hands over her mouth. She struggled and tried to scream, but as soon as the appellant got up he and the other fellow exchanged positions, the appellant holding his hands over her mouth and striking her in the jaw when she attempted to scream, while the other man raped her. She could see the faces of both rapists even in a recumbent position. They took her shoes off when she kicked, and threw sand in her mouth. The appellant started to rape her a second time, but on a warning from his accomplice they fled from the alley the same way they had come in.

The prosecutrix immediately went on west to a hamburger stand at Fifteenth and Main Streets, and a man there called the police, who came in an automobile. They first took her to the scene of the crime and then drove her to the General Hospital for examination. She said she described her assailant, the appellant, to the police that night and the next day at the hospital, as having black wavy hair, height about 5 feet 7 inches and weight about 145 pounds, wearing a dark coat and trousers. His eyes had a funny cast to them. Three days later at a show-up at Police Headquarters she identified the appellant out of eight men in line. And at the trial she was positive of the identification.

She was searchingly cross-examined about the description of her assailants which she had given the police; whether the officers had prompted her when she made the identification at police headquarters (which she denied); about her movements when appellant accosted her; about the assaults; and about her ability to see the three men in the dark. On this last point she said there was a street light on the opposite side of Fifteenth Street east of the alley entrance; and that the street or building lights further west on Main Street illuminated the alley sufficiently for her to see the two rapists. She denied remembering that she said at the preliminary hearing she only got a glance of the appellant before she had reached the alley, and didn't get a look at any of the three men until after she had started up the alley. One of appellant's attorneys testified she stated at the preliminary that the first time she saw appellant's face was when he "grabbed" her at the alley entrance. She admitted she had been raped in Omaha about 2 1/2 years earlier when she lived there, but made no complaint because she was frightened.

In corroboration of the prosecutrix the State produced as a witness Detective Kennedy, who had taken a photograph of the part of the alley involved. It showed there was an open parking lot between Main Street and the west side of the alley, with only a picket fence 3.5 feet high separating the two for some distance south of the buildings that formed the "alcove". The alley was lower than the parking lot at that place. The purpose of the photograph was to show the lights on Main Street would illumine the alley at night. Appellant's counsel contended they would not for one lying down, because of the shadows and the difference in elevation of the terrain.

Fred Smith, who worked at the hamburger stand, testified a girl came there that Sunday night a little before or after 2 a.m. The witness was not asked to identify the prosecutrix as the girl. She was ruffled up, dirty, and her coat had trash and weeds on it. Her hair was disheveled, and she was shaky, nervous and crying. She told the witness she had been attacked. He caused the police to be called, and they came.

Witness Hauser, a patrolman, was one of the officers who answered that call. He testified the time was 12:30 a.m. The prosecutrix was very hysterical, her clothes were dirty, there was sand on her coat and the back of her hair, her face looked scratched and she had a lump on her jaw. They went to the offset in the alley and found evidence of a struggle there. The witness identified the spot from photographs in evidence. The prosecutrix was taken to General Hospital and examined by physicians. The officer said the lights on Main Street included neon signs on buildings and two street lights, which latter were about ten feet higher than the picket fence along the west side of the alley. That night they illumined the alley enough for him to see conditions on the ground. But he said he had a flash light and used it to "see better".

Officer Ila Miller arrested appell...