State v. Moore

• Decision Date: 12 February 1962
• Docket Number: No. 48804,No. 1,48804,1
• Citation: 353 S.W.2d 712
• Parties: STATE of Missouri, Respondent, v. James Nathaniel MOORE, Appellant
• Court: Missouri Supreme Court

Page 712

353 S.W.2d 712

STATE of Missouri, Respondent, v. James Nathaniel MOORE, Appellant.

No. 48804.

Supreme Court of Missouri, Division No. 1.

Feb. 12, 1962.

Samuel Raban, St. Louis, for appellant.

Thomas F. Eagleton, Atty. Gen., Charles H. Sloan, Sp. Asst. Atty. Gen., for respondent.

HYDE, Judge.

Defendant was convicted of forcible rape (Sec. 559.260, statutory reference are to RSMo and V.A.M.S.) under the Habitual Criminal Act (Sec. 556.280) and sentenced to 45 years' imprisonment. Defendant has appealed but filed no brief so we consider all assignments properly made in his motion for new trial. State v. Stehlin, Mo.Sup., 312 S.W.2d 838. Four grounds were assigned.

The defense was alibi but defendant was positively identified by the prosecuting witness and he raises no question as to the sufficiency of the evidence to support the jury's verdict of guilty as charged in the indictment or as to the correctness of the court's instructions. Therefore it is only necessary to say that the evidence showed that the prosecuting witness, while walking on the sidewalk of a street in St. Louis, early in the evening of November 26, 1960 was seized by defendant, who came up behind her. She fainted and while unconscious was dragged through a gangway or alley into a yard near an apartment house. She regained consciousness while defendant with his hand on her throat, choking her, was having sexual intercourse with her. The first and third grounds of defendant's motion relate to the opening statement of the State. Defendant's first ground was that his motion for discharge at the close of the opening statement should have been sustained because it did not include all the elements necessary to sustain the charge of rape. This ground is without merit for the reasons stated in the State's brief, as follows: 'The elements of forcible rape are carnal knowledge, force, and commission of act 'without consent' or 'against the will', of the woman. See State v. Egner, 317 Mo. 457, 296 S.W. 145. There was reference to carnal knowledge when the State's attorney said in his opening statement that defendant '* * * was in the act of having sexual intercourse' with the complaining witness. The force employed was mentioned in the opening statement when the assistant circuit attorney said the victim was '* * * seized from behind and dragged into gangway * * *'. The matter of 'without consent' was properly covered when a reference was made to the fact that the victim lost consciousness prior to the original consummation of the act.' (See also State v. Jones, 363 Mo. 998, 255 S.W.2d 801, 805; State v. Deppe, Mo.Sup., 286 S.W.2d 776, 780.)

Defendant's third ground was that the court should have declared a mistrial on his motion because of reference in the opening statement to an additional crime of robery by defendant. This was the statement that upon completing intercourse with the prosecuting witness defendant reached into her coat pocket, took her wallet and then got up and fled through the gangway. The court overruled that motion 'because it is part of the res gestae.' This ruling was correct. (See State v. Rasco, 239 Mo. 535, 575, 144 S.W. 449; State v. Harrison, 263 Mo. 642, 658, 174 S.W. 57; State v. Ward, 337 Mo. 425, 85 S.W.2d 1, 6; State v. Quilling, 363 Mo. 1016, 256 S.W.2d 751, 753; State v. Martin, Mo.Sup., 275 S.W.2d 336, 338; State v. White, Mo.Sup., 301 S.W.2d 827, 829; State v. Swinburne, Mo.Sup., 324 S.W.2d 746, 753, and cases cited; State v. Varner, Mo.Sup., 329 S.W.2d 623, 627; State v. Lunsford, Mo.Sup., 338 S.W.2d 868, 872.)

Defendant's other two points relate to introduction of certain exhibits. Defendant's ground Two was that the court made voluntary and gratuitous explanation of exhibits 1, 2, 3 and 4 when they were introduced by the State at the close of the State's case, which amounted to a comment on the evidence. Defendant's ground Four alleges error in the admission of these and other exhibits. Exhibits 1, 2, 3 and 4 were photographs showing views of the scene of the offense, including nearby buildings. Upon objection that they did not portray conditions of the scene at the time the act occurred, the court sustained the objection as to Exhibit 2 and admitted the others explaining that they were received only to show the location and relation of objections, pointing out differences such as time of day and weather conditions. No...