State v. McDonough

• Decision Date: 07 February 1911
• Citation: 232 Mo. 219,134 S.W. 545
• Parties: STATE v. McDONOUGH.
• Court: Missouri Supreme Court

134 S.W. 545

232 Mo. 219

STATE v. McDONOUGH.

Supreme Court of Missouri, Division No. 2.

February 7, 1911.

1. INDICTMENT AND INFORMATION (§ 86)— REQUISITES—STATING VENUE.

By express provision of Rev. St. 1909, § 5107, the body of an indictment need not allege any venue, but the venue stated in the margin is sufficient; and by section 5115 want of a proper or perfect venue does not invalidate the indictment.

2. CRIMINAL LAW (§ 884) — VERDICT AND JUDGMENT—PUNISHMENT.

Whether or not the words "assess the punishment at three years," in a verdict, finding defendant guilty, sufficiently declare the punishment, the verdict will support the judgment of conviction with imprisonment in the penitentiary for three years; Rev. St. 1909, § 5254 providing that where the jury find a verdict of guilty, and fail thereby to declare the punishment, the court shall assess and declare it, and render judgment accordingly.

3. CRIMINAL LAW (§ 785)—INSTRUCTIONS— CREDIBILITY OF DEFENDANT AND WIFE.

Giving an instruction authorizing the jury to take into consideration the interest of defendant and his wife in the result of the trial, and their marital relation, in passing on the credibility of their testimony, is not error.

4. CRIMINAL LAW (§ 671)—TRIAL—HEARING AS TO COMPETENCY OF WITNESS AND EVIDENCE —EXCLUSION OF JURY.

During the hearing of testimony on the competency of a witness or of evidence offered, in a case where the testimony may have an influence on the minds of the jury on the issues in the case, it is the better practice to have the jury retire.

5. WITNESSES (§ 287)—EVIDENCE—CONVERSATIONS BETWEEN THIRD PERSONS.

A conversation between the mother of prosecutrix in rape and the wife of defendant, in the absence of defendant, being hearsay, and inadmissible except in the case of impeachment, the bringing out, on cross-examination of said mother, of part of such of a conversation, did not authorize her, no foundation for her impeachment being laid, to give, on the redirect, the rest of the conversation, not needed to present the situation fairly, under the rule that where part of a conversation is drawn out in evidence the adversary is entitled to the whole utterance.

6. WITNESSES (§ 53)—CROSS-EXAMINATION— WIFE OF ACCUSED.

As Rev. St. 1909, § 5242, confers on one on trial immunity from cross-examination beyond the scope of his direct examination, so it exempts his wife from cross-examination beyond the scope of her direct examination.

7. CRIMINAL LAW (§ 380)—EVIDENCE—CHARACTER OF DEFENDANT.

The character of defendant cannot be assailed by the state by proof of his specific acts of wrongdoing.

Appeal from St. Louis Circuit Court; Geo. H. Shields, Judge.

Thomas McDonough appeals from a conviction.

Reversed and remanded for new trial.

Thos. B. Harvey (Mat Holland, of counsel), for appellant. E. W. Major, Atty. Gen., and Jas. T. Blair, Asst. Atty. Gen., for the State.

KENNISH, P. J.

The defendant was indicted in the city of St. Louis, charged with the crime of rape upon Virginia Mansfield, a female child under the age of 14 years. Upon a plea of not guilty, he was tried and convicted of the offense of assault with intent to ravish, and his punishment assessed at imprisonment in the penitentiary for three years. Judgment was pronounced in accordance with the verdict, and, after taking the proper steps, he appealed to this court.

The evidence for the state tended to prove the following facts: At the time of the offense charged, the defendant, a married man with a family consisting of a wife and two small children, was engaged in the business of keeping a small grocery store and a saloon in the city of St. Louis. He resided across the street from the store. Mrs. Mansfield, mother of the prosecutrix; her mother, Mrs. Stanton; the prosecutrix; and her sister— resided near the store and residence of the defendant. The prosecutrix was six years of age and her sister about two years older. The Mansfield children and the two small children of the defendant played together. On the day of the alleged crime, the defendant, as was his custom, went to his residence in the middle of the afternoon to take a nap, leaving the store in charge of his wife, so that he could return and keep his place open until late at night. About 5:30 o'clock in the afternoon of June 25, 1908, the children were playing on the defendant's porch, and he called the prosecutrix and his own four year old girl into his room. The prosecutrix testified that the defendant laid her on the bed alongside of him, took down her panties, placed his hand on her private parts, and hurt her. The defendant's little girl was in the room at the time. The prosecutrix then went with the defendant's daughter to get a bucket of ice cream, and, being called by her sister, went home to her supper. Mrs. Mansfield testified that the prosecutrix was sobbing and crying when she came home, and that, upon being asked to tell what was the matter, related her mistreatment by the defendant. Mrs. Mansfield immediately examined her daughter and found her private parts contused and swollen and found some traces of blood. About two or three hours thereafter, Mrs. Mansfield and her mother went to the defendant's store, and, in the presence of his wife, accused him of mistreating the little girl. He denied any knowledge of the alleged misconduct, and, after his accusers had left, sent his wife to the Mansfield home to learn the facts as to the charges made. Two days thereafter Mrs. Mansfield, accompanied by a midwife, took the prosecutrix to a physician, who found the parts somewhat bruised and inflamed on the inside. The physician and the midwife testified as to the child's injuries.

The defendant and his wife testified in his behalf and denied the incriminating facts testified to by the witnesses for the state. Other witnesses for the defendant testified to statements made by Mrs. Mansfield, soon after the date of the alleged crime, in conflict with her testimony at the trial. The defendant introduced evidence of good character, and, although questions were asked his character witnesses on cross-examination, indicating that defendant was not of good character, no evidence was offered by the state upon that issue. Other facts in evidence will be referred to in the opinion.

1. Omitting formal parts, the indictment is as follows: "The grand jurors of the state of Missouri, within and for the body of the city of St. Louis, now here in court, duly impaneled, sworn, and charged, upon their oaths present: That Thomas McDonough on the 25th day of June, 1908, at the city of St. Louis aforesaid, in and upon Virginia Mansfield, a female child under the age of 14 years, to wit, of the age of 6 years, unlawfully and feloniously did make an assault, and her, the said Virginia Mansfield, unlawfully and feloniously did carnally know and abuse; contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the state." Appellant assails the indictment as insufficient on the ground that, while the venue of the assault is properly laid and is also stated in the margin, there is no venue laid as to the averment of carnal knowledge.

It is provided by section 5107, Rev. St. 1909, that: "It shall not be necessary to state any venue in the body of any indictment or information; but the county or other jurisdiction named in the margin thereof shall be taken to be the venue for all the facts stated in the body of the same." And section 5115 provides: "No indictment or information shall be deemed invalid, nor shall the trial, judgment or other proceedings thereon be stayed, arrested or in any manner affected; * * * for want of a proper or perfect venue; nor for want of any venue at all." Under these statutes, as construed in the following decisions, we hold the indictment sufficient against the attack made upon it, and that this point in appellant's brief is without merit: State v. Simon, 50 Mo. 370; State v. Dawson, 90 Mo. 149, 1 S. W. 827; State v. Brown, 159 Mo. 646, 60 S. W. 1064; State v. Hughes, 82 Mo. 86.

2. Appellant contends that the verdict is insufficient to support the judgment. It is as follows: "We, the jury in the above-entitled cause, find the defendant guilty of assault with intent to ravish, and assess the punishment at three years. F. Westman, Foreman."

Section 5254, Rev. St. 1909, provides "Where the jury find a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment by their verdict, or assess a punishment not authorized by law, and in all cases of judgment by confession, the court shall assess and declare the punishment, and render judgment accordingly." It is apparent that, if the verdict in this case failed to declare the punishment, it fell within the provisions of the foregoing statute, and the punishment was properly fixed by the judgment of the court. On the other hand, if it sufficiently declared the punishment, it is not open to the objection made.

3. Instruction numbered 11 is in the usual form and authorized the jury to take into consideration the interest of the defendant and his wife in the result of the trial, and their marital relation, in passing on the credibility of their testimony. Appellant vigorously assails this instruction as wrong in principle and urges that it should not longer receive the approval of this court. This instruction has been given in criminal cases in the courts of this state for over 30 years. It has been considered and approved by this court in many cases, and we are unwilling to hold that the trial court committed reversible error in giving it in this case. State v. Maguire, 69 Mo. 197; State v. Boyer (decided at the present term of this court, but not yet officially reported) 134 S. W. 542; State v. Dilts, 191 Mo. 665, 90 S. W. 782, and cases cited.

4. After Mrs. Mansfield and her mother had returned from defendant's...