State v. Mason

• Decision Date: 02 March 1929
• Parties: The State v. Morris Mason, Appellant
• Court: Missouri Supreme Court

14 S.W.2d 611

322 Mo. 194

The State v. Morris Mason, Appellant

Supreme Court of Missouri

March 2, 1929

Appeal from Chariton Circuit Court; Hon. David H. Harris Judge.

Affirmed.

John D. Taylor for appellant.

(1) Defendant was deprived of his right to a preliminary hearing and the motion to quash was improperly overruled. Art. 5 Chap. 25, R. S. 1919; State v. McNeal, 304 Mo. 119. (2) The court erred in overruling defendant's demurrer. There was no evidence that would warrant the jury in convicting defendant either of rape or assault with intent to commit a rape. (3) Defendant's instruction A should have been given. (4) The court erred in submitting the question of conspiracy to the jury. Conspiracy was not charged in the information, nor was there any evidence that even remotely tended to prove a conspiracy. (5) Plaintiff's Instruction 2 is erroneous because it omits all of the essential elements of conspiracy, is in conflict with Instruction 9 and in conflict with Instructions 11 and 12 given for the defendant. State v. Parr, 296 Mo. 406; State v Thompson, 293 Mo. 116; State v. Carroll, 288 Mo. 392; State v. Valle, 164 Mo. 550; State v. Bell, 289 S.W. 619; 12 C. J. 540, 546. (6) Defendant, under the evidence in this case, was clearly entitled to have an instruction on common assault given. (7) The court erred in refusing the testimony of the witness offered by the defendant. The statements made before Magistrate Schooler were especially competent in view of the fact that Conrad and Horton were together and Horton's testimony clearly shows an intention to protect Conrad. (8) The evidence given by the witness Horton when recalled at the close of defendant's case was not competent rebuttal evidence and was, in substance at least, a repetition of evidence given in chief. The admission of such testimony was in direct conflict with the rules of practice and in abuse of the court's discretionary power.

Stratton Shartel, Attorney-General, and J. D. Purteet, Special Assistant Attorney-General, for respondent.

(1) Defendant's motion to quash the information is not before this court for review. There is no merit in defendant's contention inasmuch as the record conclusively shows that defendant waived his preliminary hearing. (2) The trial court quite properly overruled defendant's demurrer to the State's evidence. The evidence was amply sufficient and substantial to take the case to the jury. The weight of the evidence and the credibility of the witnesses is a matter within the peculiar province of the jury. This court is concerned with the proposition of only whether the evidence is substantial in character. State v. Sykes, 191 Mo. 62; State v. Burlison, 285 S.W. 715; State v. Harris, 150 Mo. 56; State v. Cooley, 289 S.W. 809; State v. Egner, 296 S.W. 145; State v. Atkins, 292 S.W. 422; State v. Gilreath, 267 S.W. 880; State v. Hudson, 289 S.W. 920; State v. Hurlbut, 285 S.W. 469. (3) Instruction 2 is a correct declaration of the law of the case. Similiar instructions have many times been approved by this court. It is not in conflict with Instruction number 9. In substance, number 2 and number 9 are repetitious. This, however, does not constitute reversible error. Neither is it in conflict with instructions numbered 11 and 12 given for the defendant. The theory of conspiracy was unnecessary so long as the evidence showed defendant present, aiding and abetting Conrad, hence, submission of the theory was favorable to defendant. (4) An instruction on common assault had no place in the case. Under the evidence, defendant was either guilty or innocent of statutory rape. State v. Gilreath, 267 S.W. 884; State v. Sykes, 248 Mo. 708.

Davis, C. Higbee and Henwood, CC., concur.

OPINION

DAVIS

In an information filed in the Circuit Court of Chariton County by the prosecuting attorney, the defendant was charged with carnally knowing Fannie Hedrick, a female child under the age of sixteen years. The jury returned a verdict of guilty, and assessed his punishment at ten years in the penitentiary. The defendant appealed from the judgment entered on the verdict.

This is a companion case to that of State of Missouri v. William Conrad, post, page 246, currently decided. The evidence supporting the charge warrants the finding that, on September 15, 1926, between one-thirty and two o'clock in the afternoon, William Conrad and defendant visited the home of Orville Hedrick, which was situated about four and a half miles northeast of Keytesville, in Chariton County. They brought with them a half-gallon jug of moonshine whiskey, and during the succeeding two hours they drank all of it except about a half pint and except a sip or two Mrs. Hedrick took. Orville Hedrick, who was in the employ of defendant in the mining of coal, was absent from home at work. The men, however, found Mrs. Hedrick at home, together with four of her six children, the eldest of whom was Fannie, the prosecutrix herein, aged twelve years. The men remained in or near the home for about two hours, drinking whiskey and importuning Mrs. Hedrick and Fannie to partake thereof. Fannie refused to take a drink, and Mrs. Hedrick, after a sip or so, pretended to accede to Conrad's importunities. During his visit Conrad several times urged Mrs. Hedrick to permit Fannie to go to his orchard to gather apples, and defendant then suggested that her mother permit her to go, but Mrs. Hedrick declined to yield. Subsequently, about three-thirty P. M., Fannie's brother, James, nine years of age, returned home from school. Conrad asked James if he did not want some apples for his lunch bucket. The boy seemed anxious to have them, and Mrs. Hedrick assented that James and Fannie go to the orchard. The men then left the home by a path to the barn south of the house. Conrad said they were going to Stower's place (which lay to the south) to obtain more whiskey. The children immediately left the house by a path to the road which ran to the southwest. When they arrived at a bridge on the road, called the iron or red bridge, the men met them. The four persons continued walking down the road, Conrad and Fannie preceding defendant and James. All of them climbed a fence, but Fannie did not see where or when defendant or James climbed it. Conrad took Fannie into an orchard and down into a ravine. She did not observe where defendant and her brother went, having lost sight of them shortly after they climbed the fence. After Conrad had taken her into the ravine, about a half mile from the road, he threw her down, pulled up her dress and took down her bloomers, and had sexual intercourse with her, against her consent. Fannie said she tried to get away, but that Conrad told her if she did not lay down, he would kill her. He later said that if she told anyone, he would kill her. Upon promising that she would not tell, Conrad let her go. Then the defendant caught her. The evidence in that regard reads:

"Q. What did Morris Mason do to you? A. He tried to do the same thing Bill Conrad did.

"Q. Just what did he do to you, Fannie? A. He throwed me down.

"Q. Did he throw you down more than once or just once? A. Just once.

"Q. Did he do anything to you? A. No, sir, he didn't; he tried it and couldn't.

"Q. Now, tell the jury just what he did when he was trying to. A. I was on the ground.

"Q. Where was he? A. On top of me.

"Q. Tell in your own way what he tried to do, if anything. A. Didn't try to do nothing, tried to do it and couldn't.

"Q. What did he do with his hands, Fannie? A. Just held me down.

"Q. Did he take your clothes off, any of them? A. No, sir.

"Q. Try to? A. No, sir.

"Q. What did he say to you, if anything, when he had you down? A. Never said nothing.

"Q. After Bill Conrad had made an attack on you, had you put your bloomers back on? A. Yes, sir.

"Q. He didn't pull your bloomers down? A. No, sir.

"Q. He just caught you and got on you? A. Yes, sir."

Fannie denied that two or three days after the occurrence she made a statement to defendant's counsel, in the presence of her parents and the sheriff, that defendant did not do anything except take hold of her arm. The sheriff testified for the defense that that was all she said. The State's evidence admitted the occasion of the questioning by defendant's counsel with the consent of her parents.

The testimony of James, Fannie's small brother, tends to show that, while lying under an apple tree together, without previous conversation, defendant told him he was going to knock him in the head. James said that his daddy and mother told him to say this.

Herbert Horton, a lad of seventeen years of age, a witness for the State, stated that, while riding horseback along the road, he observed defendant lying under an apple tree in the orchard. Horton tied his horse and went to him. Upon speaking to each other, Horton asked defendant concerning Conrad's whereabouts. Defendant told him that Conrad and the little Hedrick girl were down in the brush, that they had better go to look for her, saying that, if they did not look for her, Conrad might hurt her. Defendant proceeded up one branch and Horton another, Horton losing sight of him. Horton found Conrad in his orchard close to the fence. He spoke to Conrad, and then they sat there talking. Presently, hearing Fannie crying, they started in that direction, Conrad in the rear of Horton. As they came in sight, he said he saw defendant raise up off the girl. Defendant then picked Fannie up in his arms and carried her across the branch, getting out of sight. Following, he found them lying on the ground, but he could not further describe their position. Fannie got up and ran toward the road. Defendant said that little girl acts like she was scared.

The evidence for the State further develops that Fannie...