State v. Mccord

• Decision Date: 14 November 1911
• Citation: 140 S.W. 885,237 Mo. 242
• Parties: STATE v. McCORD.
• Court: Missouri Supreme Court

140 S.W. 885

237 Mo. 242

STATE v. McCORD.

Supreme Court of Missouri, Division No. 2.

November 14, 1911.

1. CRIMINAL LAW (§ 519) — EVIDENCE — CONFESSIONS — ADMISSIBILITY.

A confession is not inadmissible merely because made while accused was in the custody of an officer.

2. CRIMINAL LAW (§ 1134) — APPEAL — REVIEW — SCOPE.

Rulings on objections to the admission of evidence will not, on appeal, be held erroneous for reasons other than those given at trial.

3. RAPE (§ 51) — PROSECUTION — PROOF OF CORPUS DELICTI.

In a prosecution for rape, evidence held sufficient to prove the corpus delicti.

4. RAPE (§ 51) — PROSECUTION — EVIDENCE — SUFFICIENCY.

In a prosecution for rape, evidence held sufficient to warrant a conviction.

5. CRIMINAL LAW (§ 1159) — APPEAL — REVIEW — VERDICTS.

Only where there is no substantial evidence of guilt will the appellate court interfere

with convictions on the ground of insufficiency of evidence.

6. CRIMINAL LAW (§ 784) — INSTRUCTIONS — CIRCUMSTANTIAL EVIDENCE.

Where accused admitted his guilt in a prosecution for rape, it was not error to refuse an instruction on circumstantial evidence.

7. CRIMINAL LAW (§ 721½) — TRIAL — ARGUMENT OF COUNSEL.

In a prosecution for rape, where the state relied upon accused's delay in summoning a physician to attend prosecutrix, who was his stepdaughter, accused testified that he had attempted to secure one, but failed to call as witnesses disinterested persons, who must have known of the attempt, if one was made, to corroborate his testimony, it was not error for the prosecuting attorney in his argument to call these facts to the attention of the jury.

Appeal from Criminal Court, Greene County; C. H. Skinker, Special Judge.

John McCord was convicted of rape, and he appeals. Affirmed.

E. W. Major, Atty. Gen., and Jno. M. Dawson, Asst. Atty. Gen., for the State.

BLAIR, C.

Convicted of ravishing his stepdaughter, a six year old child, John McCord appealed to this court.

The evidence was to the effect that Dr. Kerr, a physician, called to the home of appellant on the afternoon of October 16, 1910, examined the child, and according to his testimony and that of Dr. Lemmon, who was subsequently called in, the "vagina was torn throughout its whole length, clear into the womb, but not into the rectum, except for the first inch." The child was then in great agony, and Dr. Kerr was the first physician called to attend her, though the injuries had the appearance of having been inflicted some 14 to 16 hours before he arrived. There had been much loss of blood. Appellant was not at home while the physician was there. Expert testimony disclosed that the child's condition could have resulted from ravishment, and she made complaint that it was so brought about. The victim, her mother, and appellant were the only occupants of the house at the time the offense was committed, and it was shown that the latter had been drinking "considerably" (as he himself testified) on the night of the 15th, so much so that his wife removed his shoes and clothing for him in order that he might retire.

When he was arrested and (apparently before being apprised of the charge against him) asked what he had to say, appellant replied: "I am not guilty, but there is no use to talk to you people." As he was being taken to jail, immediately after his arrest, one of the officers in whose charge he was, speaking of the case in hand, said to him: "Your wife stayed with you a long time." Appellant replied: "I have got the best woman in the world. I ought to have died when I was a baby." The officer then said: "John this is an awful thing; what did you do it for?" Appellant answered: "I was drunk, and had no mind at all; I don't know what I done it for." Appellant, in his own behalf testified, in substance, that he knew nothing of the matter until the child's condition was discovered by its mother some time after 8 o'clock on the morning of October 16th; that he attempted to call Dr. Purselly by telephone, and failed to reach him, and then went about his work; that he thought the child had been criminally assaulted, but did not notify the authorities, intending to find the offender himself. There was also evidence that appellant had been convicted of selling whisky, and that his reputation for truth and veracity was bad. His wife did not testify.

1. Objection was made to the proof of certain admissions of appellant on the ground that "he was in the custody of an officer." The reason given in the objection would not of itself have warranted the court in ruling otherwise than it did (State v. Armstrong, 203 Mo., loc. cit. 559, 102 S. W. 503; State v. Barrington, 198 Mo., loc. cit. 109, 110, 95 S. W. 235), and we cannot, in fairness to the trial court, hold rulings on objections to evidence erroneous for reasons other than those given at the time.

2. The sufficiency of the evidence is challenged. The condition of the child, considered in connection with the expert testimony as to its cause, the direct testimony of appellant that, in his opinion, the child had been ravished, coupled with the inherent improbability that her...