State v. Merchant, 35830.
| Decision Date | 17 August 1938 |
| Docket Number | No. 35830.,35830. |
| Citation | 119 S.W.2d 303 |
| Parties | STATE v. MERCHANT. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court; James M. Douglas, Judge.
Richard Merchant was convicted of the offense of rape, and he appeals.
Affirmed.
R. L. Spelbrink, of St. Louis, for appellant.
Roy McKittrick, Atty. Gen., and Frank W. Hayes, Asst. Atty. Gen., for the State.
Appellant and one Elgie Taylor were jointly charged with the offense of rape. A severance was ordered, and upon a separate trial, appellant was convicted. The jury assessed his punishment at a term of three years in the penitentiary, which was by the court commuted to two years. Judgment and sentence accordingly, and he appeals.
The evidence in the case, the sufficiency of which is not challenged on this appeal, warrants the finding that on the night of May 31, 1936, Rose Ridel, the prosecuting witness, was picked up on Franklin Avenue in St. Louis at a late hour by appellant and Elgie Taylor upon the pretext that her boy friend was waiting for her at a certain street intersection, and that they would take her to him. All the persons above named had spent the evening, or a considerable portion of it, in a resort known as Congo Tavern, where there had been some drinking. Rose got in the back seat of the car with appellant and others. Elgie Taylor, another girl, and the driver occupied the front seat. They passed the intersection where Rose's friend was supposedly waiting for her, and they refused to let her out of the car. They proceeded to O'Fallon Park, where, according to the testimony of the prosecuting witness, appellant pulled her out of the car, and Elgie Taylor put a knife in her side, and carried her over to some bushes nearby, and forced her to lie down, and that both appellant and Taylor had intercourse with her, forcibly and against her will.
Appellant, testifying in his own behalf, stated that he was intoxicated, and only remembered going out to the park in the car, and all of them getting out of the car, but did not remember anything that happened in the park; that he was in a daze or stupor; that he did not have a knife and did not see anyone with a knife, and denied having any knowledge of Rose Ridel being raped. He recalled starting back to town, and testified that he was seated at the car door, "and the air hitting me in the face, I kind of revived, and I remember some of the people got out, and then we took Rose Ridel home * * * when we got to the Dayton Hotel, myself and Taylor, I think we got out and helped Rose up the steps to go home." On cross-examination, when asked if it was a fact that maybe he did have sexual intercourse with Rose Ridel, and he was so drunk that he couldn't remember it, appellant replied, "Well, after I heard what the witnesses had to say about it, I was under the impression that I did not have intercourse with her at all."
The only point briefed on this appeal is that raised by the seventh and eighth grounds of the motion for new trial, which complain that appellant was deprived of his constitutional right to be confronted with the witnesses against him, as provided...
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...S.W. 1041; STATE V. egan, Mo.apP., 272 s.W.2D 719, 723. They must be kept alive throughout the case by proper objection (State v. Merchant, Mo., 119 S.W.2d 303, 304; State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878, 887; State v. Nordseick, Mo.App., 295 S.W. 808, 810; State v. Egan, supra [4......
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