State v. Mitchell

• Citation: 96 S.W.2d 341,339 Mo. 228
• Parties: The State v. Harvey Mitchell, Appellant
• Decision Date: 20 August 1936
• Court: United States State Supreme Court of Missouri

96 S.W.2d 341

339 Mo. 228

The State v. Harvey Mitchell, Appellant

Supreme Court of Missouri

August 20, 1936

Appellant's Motion for Rehearing Overruled.

Appeal from Randolph Circuit Court; Hon. Aubrey R. Hammett Judge.

Affirmed.

Bagby & Burton and Luman Spry for appellant.

(1) The court erred in admitting the evidence testified to by Dr Shaw of the physical condition of the prosecutrix for a long period of time after the alleged assault. Evidence of the physical condition of the prosecutrix for a long period of time after the alleged assault is inadmissible. 52 C. J., p. 1073, sec. 97; State v. Houx, 109 Mo. 662; People v. Eagan, 331 Ill. 489, 163 N.E. 357. (2) The court erred in admitting the evidence of a venereal disease of defendant and prosecutrix, as testified to by J. T. Gaines, Pierce and Dr. Shaw. Marshall v. State, 22 Ala. 552. (3) The court erred in admitting evidence of the prosecuting attorney, Mr. Pierce, the sheriff, Tom Gaines, and Dr. Shaw, as to the examination and statements made by the defendant in the office of the prosecuting attorney on the morning after his arrest. Such testimony was incompetent and inadmissible as violative of defendant's constitutional rights, compelling him to testify against himself. State v. Newcomb, 220 Mo. 55; Art. II, Sec. 23, Mo. Const.; State v. Horton, 247 Mo. 663. (4) The court erred in permitting the cross-examination of character witnesses of defendant, and as set out in Section 13 of the motion for new trial. Cross-examination of character witnesses held improper. State v. Seay, 222 S.W. 429; State v. Prendible, 165 Mo. 354. (5) Cross-examination of character witnesses, unless in good faith is error, and new trial should be granted unless such questions are in good faith. State v. Dixon, 190 S.W. 293. (6) The verdict of the jury is not based upon the evidence, but is the result of passion and prejudice, brought about by improper questioning and conduct of counsel for State, and the improper rulings of the court thereon. State v. Teeter, 239 Mo. 486; State v. Rose, 178 Mo. 37; State v. Burgdorf, 53 Mo. 67; State v. Houston, 263 S.W. 225; 16 C. J., p. 886, sec. 2221; 16 C. J., p. 891, sec. 2228; State v. Rose, 178 Mo. 37.

Roy McKittrick, Attorney General, William W. Barnes and James L. HornBostel, Assistant Attorneys General, for respondent.

(1) Substantial evidence supports the verdict. State v. Miller, 300 S.W. 766; State v. Henke, 313 Mo. 615, 285 S.W. 392; State v. Oliver, 64 S.W.2d 120; State v. Taylor, 8 S.W.2d 35. (2) The testimony of Dr. Shaw relative to the physical condition of prosecutrix prior to and after the assault, was competent. State v. Dalrymple, 270 S.W. 678. (3) There is nothing in the record to substantiate appellant's motion for new trial, that the verdict of the jury was the result of passion and prejudice, induced by and as the result of improper and prejudicial argument of respondent. State v. Dalton, 23 S.W.2d 7; State v. Griffin, 6 S.W.2d 868.

OPINION

Tipton, P. J.

In the Circuit Court of Howard County, an information was filed under Section 3999, Revised Statutes 1929, charging the appellant with forcibly ravishing one Mary Ann Constantz on July 9, 1933. A change of venue was granted to Randolph County, where on December 18, 1934, the appellant was found guilty and his punishment assessed at ten years in the State penitentiary.

At the time of the alleged offense, the prosecutrix was sixteen years of age and lived with her parents at Fayette, Missouri.

About seven-thirty P. M., on that date, the appellant, in company with Emery Smith and Virginia Cady drove an automobile to the prosecutrix' home and Virginia Cady asked the prosecutrix to go riding with them. After obtaining permission from her mother she joined the party for a ride and got in the front seat of the car with the appellant. Prior to this time the prosecutrix and the appellant were not acquainted. The appellant drove the automobile to the golf links. After arriving at the golf links, the appellant stopped the car near a pond and spread a blanket upon the ground, and all four of the occupants of the car sat upon it. The appellant offered the prosecutrix some whiskey which she refused. Prosecutrix told appellant that she was sick and wanted to go home.

Prosecutrix testified that she and the appellant got into the car and drove around the golf links twice, the appellant stated that he was looking for the way out.

"A. He stopped the car and grabbed me and I screamed and he choked me and said he would kill me."

"A. I started to get out of the car and he threw me down and spread my legs apart and shoved my Kotex aside and put his private parts in mine."

On cross-examination she stated: "A. He grabbed me and choked me and I screamed, and he said if I screamed again he would kill me."

"Q. Now, that is the time I believe you stated that you heard voices from the road? A. Yes, it was."

"Q. Did you keep on screaming, did you? A. No, after he threatened to kill me . . . I didn't know whether he would kill me or not."

When the prosecutrix screamed, someone on the road answered.

After this occurrence, appellant took prosecutrix to the blanket where the other parties were. Prosecutrix told Virginia Cady what had happened. Virginia cursed the appellant and told him to take prosecutrix home. The two couples got into the automobile and drove to prosecutrix' home. The prosecutrix immediately told her mother that the appellant had ruined her life. The sheriff of Howard County was notified and he arrested the appellant shortly after the prosecutrix arrived home. The evidence showed that the prosecutrix' dress was torn.

The appellant admitted that he had intercourse with her but contended he did so with her consent. The evidence showed that the appellant was suffering with gonorrhea and that the prosecutrix contracted this disease. Other pertinent facts will be stated in the course of this opinion.

I. From the above facts, we are of the opinion that there was sufficient substantial evidence to sustain the verdict of the jury. [State v. Lindsey, 80 S.W.2d 123; State v. Oliver, 64 S.W.2d 118, 333 Mo. 1231; State v. Worden, 56 S.W.2d 595, 331 Mo. 566; State v. Taylor, 320 Mo. 417, 8 S.W.2d 29; Sec. 3999, R. S. 1929.]

II. Error is assigned because the trial court permitted the prosecuting attorney to ask witnesses who testified concerning the appellant's good character, whether they had heard rumors to the effect that the appellant had been convicted of violating the law, that he had been in frequent trouble with the officers of Slater; that he and others were suspected of the robbery of the Grime's store at Arrow Rock; that he was engaged in a fight at Glasgow about a year and a half ago; that he was involved in the violation of the law sometime prior to July 9, 1933, in which his brother, Tom, was sent to the penitentiary; that he had trouble with a girl named Lorraine Taylor in Marshall a few years ago. All the witnesses answered these questions in the negative.

The extent to which such cross-examination may go is largely within the discretion of the trial court. Such questions are permissible to test a witness vouching for the good character of the appellant. If a witness had admitted that he had heard of such alleged acts of misconduct, such admissions would tend to weaken his testimony that the appellant's reputation was good. [State v. Parker, 172 Mo. 191, 72 S.W. 650; State v. Harris, 209 Mo. 423, 108 S.W. 28; State v. Phillips, 233 Mo. 299, 135 S.W. 4; State v. Pine, 18 S.W.2d 48; State v. Harris, 22 S.W.2d 1050, 324 Mo. 139.]

"It is said that the court erred in permitting the State to ask defendant's character witnesses, upon cross-examination, whether they had heard that defendant had been charged with other crimes not charged in the information. The record shows that witnesses who testified that defendant bore a good reputation for morality were asked if they had not heard it rumored that defendant had lived in Kansas City with a woman other than his wife, and if they had not heard that he was the father of an illegitimate child living at or near West Plains. One or two of such witnesses admitted that there had been vague and indefinite rumors of that sort going around the sewing circles.

"There was no error in permitting that sort of examination to test a witness vouching for the good character of the defendant. If the witness admitted that he had heard of such alleged acts of misconduct, such admission would tend to weaken his testimony that defendant's reputation for morality was good. The extent to which such cross-examination may go is largely within the discretion of the trial court." [State v. Cooper, 271 S.W. 471.]

In the case of State v. Gurnee, 309 Mo. 6, 274 S.W. 58, l. c. 60, we said:

"Neither the Cooper case nor any of the cases therein cited made it a prerequisite that rumors must actually have been afloat. It would clearly be improper to make any of such proof prior to the asking of such question, or at any other time. The theory advanced by defendant would make the propriety of asking character witnesses about rumors concerning a defendant on trial, which would tend to show that he did not possess a good reputation, depend upon the character of the answers made by the witnesses. In other words, if the witness answered that he had heard such rumors, then no error would have been committed by the court in permitting the question to be asked and in requiring it to be answered; but, if the question be answered in the negative, the court committed reversible error. Such cannot be and is not the rule. The assignment is overruled."

The prosecuting attorney owes the appellant, as well as the State, a duty to see that he has a fair and...