State v. McCrackin, 37878.

• Decision Date: 17 June 1942
• Docket Number: No. 37878.,37878.
• Citation: 162 S.W.2d 853
• Parties: STATE v. McCRACKIN.
• Court: Missouri Supreme Court

162 S.W.2d 853

STATE v. McCRACKIN.

No. 37878.

Supreme Court of Missouri, Division No. 2.

June 17, 1942.

Appeal from Circuit Court, Howell County; Hon. Gordon Dorris, Judge.

Charley McCrackin was convicted of statutory rape, and he appeals.

Reversed and defendant discharged.

E. V. Kell and M. E. Morrow, both of West Plains, for appellant.

Roy McKittrick, Atty. Gen., and Arthur O'Keefe, Asst. Atty. Gen., for respondent.

BOHLING, Commissioner.

Defendant nisi appeals from a judgment imposing a sentence of three years' imprisonment for statutory rape. § 4393, R. S.1939, Mo.R.S.A. § 4393. He attacks the competency of the prosecutrix as a witness, who was fifteen years of age and mentally subnormal, and the sufficiency of the evidence.

We think the conviction should not stand. Defendant lived about five miles from West Plains, Missouri. His wife was ill and he went to West Plains to secure help while she was convalescing. A neighbor and his wife accompanied him to West Plains. Before returning he stopped at the prosecutrix' home. Upon preliminary inquiry as to her competency, prosecutrix testified that she finished the third grade at school; that she knew the meaning of an oath and knew the difference between right and wrong; that the county welfare officer told her to tell the truth and told her what to say when she took the stand; that she knew it was wrong to tell a lie and right to tell the truth, and that she would tell the truth when questions were asked. This does not disclose an abuse of the discretion vested in the trial court to proceed with her testimony. Section 1895, R.S.1939, Mo.R.S.A. § 1895; State v. Herring, 268 Mo. 514, 529(III), 188 S.W. 169, 178[3]; Burnam v. Chicago G. W. Rd. Co., 340 Mo. 25, 33[1], 100 S.W.2d 858 861[2]. The facts differed in State v. Jackson, 318 Mo. 1149, 1153, 1154, 2 S. W.2d 758, 759[1, 2], relied on by defendant. Prosecutrix thereafter, on direct examination, testified that defendant came to her home one Saturday; that they went upstairs, they being the only ones in the house, and to the fact of intercourse there occurring. The answers were in response to questions of a more or less leading nature. On cross-examination she testified she did not remember the day of the week of the occurrence; that defendant came to the front door; that he came to the back or kitchen door; that defendant asked her if she could do housework; that she told him there was a fire upstairs and took him upstairs and showed him where there had been a fire; that she never talked with the county welfare officer about it; that she had talked to him about it; that he told her what to say on the witness stand; that she told her sister, her mother, and her father about the occurrence; that she told only her sister, who told her mother and father; that she did not know how long defendant was in the house. Asked if she saw defendant take anything out of his trousers, she answered: "No, sir. Q. You didn't feel anything about him in any way did you? A. No." On redirect examination she testified that the county welfare officer and the prosecuting attorney had always told her to tell the truth about the occurrence. Then, on recross-examination: "Q. But Wanda, you didn't know what the truth was did you? A. (No answer.) Q. You didn't know what the truth was, did you Wanda? A. No." A physician called by the State testified that prosecutrix was mentally subnormal and in his opinion, based on an examination, that prosecutrix had engaged in intercourse a number...