State v. Mitchell

• Citation: 86 S.W.2d 185
• Decision Date: 03 September 1935
• Docket Number: No. 33764.,33764.
• Court: Missouri Supreme Court
• Parties: STATE v. MITCHELL.

86 S.W.2d 185

STATE v. MITCHELL.

No. 33764.

Supreme Court of Missouri, Division No. 2.

September 3, 1935.

Appeal from St. Louis Circuit Court; Arthur Bader, Judge.

Walter Mitchell was convicted of statutory rape, and he appeals.

Affirmed.

Emanuel Williams, of St. Louis, for appellant.

Roy McKittrick, Atty. Gen., and Wm. W. Barnes, Asst. Atty. Gen., for the State.

LEEDY, Judge.

To reverse a judgment of the circuit court of the city of St. Louis convicting him of statutory rape, sentencing him to life imprisonment, appellant prosecutes this appeal, but has filed no brief.

The facts: The prosecutrix and appellant are colored, and lived in St. Louis. The date of the alleged offense is fixed as of December 17, 1932. Juanita Blackard, the prosecutrix, aged ten years, lived with her mother, sister, and appellant at a rooming house conducted by Hazel Parker at 709 North Ewing. At, and for several months prior to the time in question, appellant and Florence Blackard, mother of prosecutrix, were living together as man and wife, although not married. Juanita testified that on the occasion in question, she and appellant were at home, and that appellant told her to go to Hazel Parker's room, but instead she went to her own room, where appellant assaulted her, the details of which need not be related, except to say that, if believed, her testimony was abundantly sufficient to show the commission of the offense charged. A few days thereafter, Hazel Parker, detecting peculiarities in prosecutrix's manner of walking, "picked it out of her" that appellant had criminally assaulted her. This information was imparted to the mother, Florence Blackard, who immediately caused appellant to be arrested and charged. Appellant, who was the sole witness called in his behalf, denied his guilt, and testified that he had not in any way, at any time, mistreated prosecutrix. Further, that a few days before his arrest, he and Florence had quarreled and "fallen out," and that she had threatened to get him; more particularly that she told him he "was a jinx to her, and if I didn't stop running around with women, she would get even with me, and trick me." This Florence denied. Also, as accounting for the hostile attitude of prosecutrix, he testified he had scolded her for the manner in which she and her sister talked about a little boy named Charles.

We look to the motion for new trial for the assignments of error, of which there are four. The first complains there was no corroboration of the prosecutrix, without which, it is asserted, the verdict cannot stand. There was evidence tending to show the presence of appellant and prosecutrix at the time and place in question. However, in making out a case under the statute under which appellant was charged, section 3999, Rev. St. 1929 (Mo. St. Ann. § 3999, p. 2801), it is not necessary that prosecutrix should be corroborated as to the act of sexual intercourse. State v. Cox (Mo. Sup.) 263 S. W. 215; State v. Wade, 306 Mo. 457, 268 S. W. 52; State v. Thomas, 318 Mo. 843, 1 S.W.(2d) 157.

The second ground of the motion is that the verdict is against the weight of the evidence. All the essential elements of the offense were testified to by prosecutrix. The story told by her was not impossible in itself, nor unreasonable, although on cross-examination she may have made somewhat contradictory statements. The law is so well settled as to require no citation of authorities that the weight of the evidence is for the consideration of the jury, and where, as here, there is substantial evidence to support the verdict, this court will not interfere.

The third assignment relates to alleged improper argument on the part of the assistant circuit attorney who tried the case on the part of the state. The information averred that appellant had been thrice previously convicted of felonies, and his discharge upon compliance with the sentences, thus bringing the case within our habitual criminal statute. Appellant admitted his former convictions, but for reasons not appearing in the record, that issue was not submitted to the jury, and, accordingly, it made no finding with respect thereto.

That portion of the argument objected to, and preserved for review, is as follows:

"Mr. Hennings: The State is standing here as a barrier to the ravishment of infants by such persons, particularly as this defendant with the past character he has.

"Mr. Williams: We object to that remark of counsel as being highly prejudicial to the right of this defendant. The Court did not instruct as to the prior convictions. Therefore, I am asking that a mistrial be declared and the jury be discharged.

"Mr. Hennings: That was developed as to his credibility as a witness.

"The Court: I will overrule the objection. (To which ruling of the court, defendant, by his counsel, then and there duly...