State v. McBrayer, 43722
| Decision Date | 12 July 1954 |
| Docket Number | No. 43722,No. 1,43722,1 |
| Citation | 269 S.W.2d 756 |
| Parties | STATE v. McBRAYER |
| Court | Missouri Supreme Court |
Waldo P. Goff, St. Joseph, for appellant.
John M. Dalton, Atty. Gen., Grover C. Huston, Asst. Atty. Gen., for respondent.
Defendant was charged, tried and convicted of molesting a minor (a 12 year old female child) under the provisions of Section 563.160 RSMo 1949, V.A.M.S. and his punishment was assessed by the jury at three years imprisonment in the State Penitentiary. He has appealed and filed a full transcript of the proceedings and evidence offered in the trial court, but he has not favored us with a brief and we shall look to his motion for a new trial for the assignments of error and review all points properly saved therein. State v. Courtney, 356 Mo. 531, 202 S.W.2d 72, 73; State v. Tillett, Mo.Sup., 233 S.W.2d 690, 691; Section 547.270 RSMo 1949, V.A.M.S.
In his motion for a new trial defendant has assigned error on the court's action (1) in refusing to direct a verdict for him as requested at the close of all the evidence; (2) in the admission in evidence of exhibit 'A', an alleged confession on the part of defendant; and (3) in permitting prejudicial argument by the prosecuting attorney, 'when the prosecutor referred to the defendant as a liar and perjurer even though the court endeavored to correct same by instructing the jury to disregard the same.'
The charge set forth in the information was that defendant on or about the 1st day of February 1952, '* * * did then and there unlawfully, feloniously and willfully take indecent and improper liberties with one Jo Ann Sharp, a female child under the age of sixteen years, to wit, a minor of the age of twelve years, by then and there placing his hands on the private parts of the said Jo Ann Sharp, and by then and there touching parts of the body of the said minor child with his penis * * *.'
The state's evidence tended to show that the prosecuting witness hereinafter referred to as Jo Ann was a female child, 12 years of age, whose parents had been killed in an automobile wreck and she had been in the defendant's home for about two years. Defendant's wife, who was a sister of Jo Ann's father, had been appointed and was acting as Jo Ann's guardian and curatrix.
Defendant, who was 60 years of age at the time of the trial in October 1952, had been married for some 13 years, but he had no children of his own. For about eight months prior to February 1, 1952, defendant and his wife and Jo Ann had resided in Buchanan County at 228 Edmonds Street, St. Joseph, Missouri, where defendant operated a restaurant and lived in two rooms immediately back of the restaurant. Defendant and his wife slept in one of these rooms and Jo Ann slept in a roll-away bed in the other room. Friday afternoon, February 1, 1952, Jo Ann's aunt (defendant's wife) went to Chariton County with her father and did not return until the following Sunday. On Friday night, after the restaurant was closed and Jo Ann was in her room fixing her bed and getting ready to retire, the defendant came into her room and bit her on the arm and told her that she would have to go to bed with him. She testified that he 'made' her 'go to bed with him' and, after they got in bed, he put his hand over on her and started playing with her privates. She was lying on her back and he kept scooting toward her and he tried to put his private in her's while she had her back to him. She said the same thing happened on the following night.
On Saturday night, February 2, 1952, after she and defendant had returned from the picture show, she was getting undressed for bed when defendant said she would have to go to bed with him again. After they were in bed he again played with her privates and tried to put his private in hers. She said that something like that had happened before and that she had told her older sister Barbara, but not her aunt for fear her aunt would not believe her and would spank her. Her aunt did not often leave for the weekend, but occasionally did.
On being recalled to the witness stand by defendant, she testified that about a month before February 1, 1952, she had told her grandfather 'partly what was going on,' but she could not remember all of the things she told him about defendant playing around with her. She said she did not really know how long it had been going on, but said that 'about two months after we moved down to the cafe he made me put my hands on his private parts.' She did not tell her grandfather 'right after it started,' but did tell him later. After she told her sister Barbara, she also told her aunt with whom Barbara resided (not defendant's wife). She said she was afraid of defendant and, 'when all of this was going on,' she had not started to have periods.
Defendant was arrested on February 9, 1952, about 9 p. m. and, on the following day, about 2 p. m., he made a statement to the police that was taken down in shorthand and then transcribed and presented to defendant, who read it and signed it. The statement was offered and received in evidence. In this statement defendant stated that he went to bed on Friday, February 1, 1952 at about 11 p. m.; that Jo Ann was undressed and in bed in his room before he was; that she had on a little nightgown; that he undressed, put on a pair of pajamas and went to bed; that he had hurt his back that afternoon on the roof and after he was in bed with Jo Ann he asked her to rub some liniment on his back and she did; that she was kidding him and said she would rub his back if he would rub hers; that she loved to have her back rubbed and always had, but that he did not put any liniment on her. He said he did not love and fondle her,' He further said that he put his hands on her privates and put his penis against her rectum, while her nightgown was up; that she did not play with his penis, only put her hand over there and touched him and took her hand and rubbed it against his penis and stomach; and that his wife had gone to Chariton County that evening.
In the trial of the cause, defendant testified in his own behalf to the effect that on Friday evening, February 1, 1952, when he got ready for bed, Jo Ann was in her bed reading; that he 'stopped and kissed her good night' and went on to his bed and went to bed, as was his custom; that 'for a year ahead of this date alleged in this information' he did not 'at any time become familiar with her or molest her in any way by placing his hands on her private parts, or placing his penis against any part of her body'; that on Saturday, February 2, 1952, about 11:30 p. m., when he got ready for bed he found Jo Ann in his bed. He testified: He said that the only time he touched her was when he kissed her good night as usual. On cross-examination, he said it was the first time he had ever slept all night with her in the same bed and that his wife was gone. When cross-examined with reference to his written statement, he could remember little of it, but said that when questioned he could have said: He also stated that if he had said it, it would have been true, since it did happen on Saturday night after Jo Ann had retired; and that he kissed her that night, as he always did. On further cross-examination defendant recalled that, at the police station, he had been asked whether he had had sexual intercourse with Jo Ann and whether he had been 'fooling around' or 'playing around' with her. He said he asked what these several terms meant and that he then denied that he had committed any of such acts.
We first consider the assignment that the court erred in admitting exhibit 'A' in evidence over defendant's objection. The ground upon which the assignment is based is that 'it had been conclusively shown, that said statement or alleged confession on the part of the defendant, was obtained by duress.'
After the exhibit had been identified by the witness, who took the statement in...
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