State v. Mundy

• Decision Date: 01 December 1934
• Docket Number: 33750
• Citation: State v. Mundy, 76 S.W.2d 1088 (Mo. 1934)
• Parties: STATE v. MUNDY
• Court: Missouri Supreme Court

76 S.W.2d 1088

STATE v. MUNDY

No. 33750

Supreme Court of Missouri, Second Division

December 1, 1934

Joseph R. Palmer, of Elsberry, and Williams & Huston, of Troy, for appellant.

Roy McKittrick, Atty. Gen., and Wm. Orr Sawyers, Asst. Atty Gen., for the State.

OPINION

COOLEY, Commissioner.

Prosecution for rape, charged in the information to have been committed by the defendant by having carnal knowledge of one Geneva Green, a female child under the age of sixteen years. Defendant was convicted and sentenced to five years imprisonment in the penitentiary, from which judgment he appeals. The offense is alleged to have been committed on the -- day of December, 1931. The state's evidence tends to prove the following: The prosecutrix, Geneva Green, was born August 17, 1919, and was therefore about four months over twelve years of age at the time of the offense charged. Her mother died when she was about three years old and a year or so later she and a brother, four years older, were taken by defendant and his wife into their home to be brought up as their children, defendant and his wife being childless. Prosecutrix thereafter remained in the Mundy home as a member of the family until after the occurrence here involved though it appears she was not formally adopted. The Mundys lived on a farm and prosecutrix attended a country school, somewhat irregularly, and helped with the work about the house and farm. She testified that on a morning in December, 1931, at the barn where she had gone to milk, the defendant seized her, threw her down, and had sexual intercourse with her, and that she became pregnant as the result of that intercourse. It is admitted that she gave birth to a child on September 9, 1932. Prosecutrix made no complaint of defendant's alleged misconduct at the time. When Mrs. Mundy at length began to suspect that prosecutrix was pregnant and had her examined by a doctor, verifying the suspicion, prosecutrix refused to say who was responsible for her condition. When the time of her confinement approached, the defendant took her to a maternity home at St. Joseph, Mo., where the child was born. We deem it unnecessary to detail prosecutrix' testimony. If true, it makes a case for the jury. In addition, the sheriff of Lincoln county and his nephew, who accompanied him when he arrested defendant on this charge, testified in substance that defendant tried to induce them to allow him to escape, offering to pay the sheriff if he would do so; that defendant said he had thought that by taking prosecutrix to St. Joseph for her confinement 'it would be kept quiet and he could get by with it'; that the nephew mentioned having heard that a blood test could be taken to determine the paternity of the child, and that defendant said he had never heard of a blood test, but if there was such a thing it might 'put him in bad'; that 'if this blood test was taken it might be bad on me.' The sheriff further testified: 'I asked him what he was doing fooling around this young girl, and he said old men like young stuff as well as young ones sometimes.'

Defendant, testifying for himself, denied having ever had sexual intercourse with prosecutrix or having in any way mistreated her and denied having made the statements attributed to him by the sheriff and his nephew. By numerous witnesses, he proved a good reputation for himself, which the state did not dispute. There was also evidence that prosecutrix' reputation for truth and veracity was not good. Defendant's evidence also tended to prove that he was about fifty-nine years of age at the time of the alleged offense and that when he was about thirty he had the mumps, which 'went down' on him, involving both testicles, resulting in considerable atrophy of his generative organs and seriously impairing his sexual power. He testified that for several years prior to the time of the alleged offense he had been impotent, in which testimony he was corroborated by his wife. He introduced expert evidence tending to prove that he was sterile, i. e., incapable of producing pregnancy in a woman, and had been so since the attack of mumps. One of the expert witnesses, Dr. Pernoud, testified that he had made two microscopic examinations of defendant's semen and could find no live spermatozoa.

Appellant contends that the prosecutrix' testimony is without corroboration, and is so discredited by prior contradictory statements made and testimony given by her that it does not amount to substantial evidence and that a verdict based thereon should not be permitted to stand. It must be conceded that the prosecutrix' statements prior to the instant trial are plentifully sprinkled with contradictions and falsehood. Until about the birth of her child she steadfastly refused to divulge the name of its father, stating to Mrs Mundy only that he was a married man with one child. On the trial she attempted to explain that statement by claiming that she was the 'one child' seemingly on the theory that she was defendant's adopted child. While at the maternity home, she for the first time stated that defendant was the father and made a written statement to that effect. Defendant was not then present, having returned to his home. Later the prosecutrix made two affidavits, one at St. Joseph on September 24, 1932, in a law office to which she had been taken by Mrs. Mundy and one on October 12, 1932, in the presence of Mrs. Mundy and defendant's attorney, at the Mundy home to which she had been brought back from St. Joseph, in which affidavits she repudiated the accusation she had made against defendant and stated that he had never had sexual intercourse with her nor in any way mistreated her. On the trial of this case she testified that defendant had had intercourse with her frequently from the time she was eleven years old. On three previous occasions, once at a juvenile court hearing about October 26, 1932, once at the preliminary examination of defendant, December 1, 1932, and again in a deposition about March 24, 1933, she testified that defendant only had intercourse with her one time, viz., the time here in question in December, 1931. At this trial she said the act occurred after breakfast. On other occasions she testified that it occurred before breakfast. In her testimony given at the various hearings there were other contradictions as to details, not particularly important except as affecting her credibility. She admitted on the trial that on prior occasions she had knowingly made false statements under oath, particularly in stating in her affidavits that defendant had never...