State v. Nevitt

• Court: Missouri Supreme Court
• Writing for the Court: RAILEY, C. Per Curiam.
• Citation: State v. Nevitt, 270 S.W. 337 (Mo. 1924)
• Decision Date: 31 December 1924
• Docket Number: 25671
• Parties: STATE v. NEVITT

270 S.W. 337

STATE v. NEVITT

No. 25671

Supreme Court of Missouri, Second Division

December 31, 1924

Motion for Rehearing Overruled March 19, 1925.

Joseph F. Aylward, Charles Middleton, and W. T. Woodford, all of Kansas City, for appellant.

Jesse W. Barrett, Atty. Gen., Robert W. Otto, Asst. Atty. Gen., and Wm. L. Vandeventer, Sp. Asst. Atty. Gen., for the State.

OPINION

Statement.

RAILEY, C.

On May 7, 1923, the grand jury of Jackson county, Mo., returned into the circuit court of said county an indictment against appellant, Terry Nevitt, charging him with statutory rape, in having had, on May 16, 1922, sexual intercourse with Dorothy Barrett, a female child under the age of 15 years, in the county and state aforesaid. He was arraigned and entered a plea of not guilty. On June 6, 1923, after the jury had been impaneled, defendant filed a motion for a continuance, and the court postponed the case until the following morning. No further continuance was asked. The jury, after a trial, on June 8, 1923, returned the following verdict:

'We the jury, find the defendant, Terry Nevitt, guilty of rape as charged in the indictment, and assess his punishment at two (2) years in the state penitentiary.

'Herbert D. Garvin, Foreman.'

Motions for a new trial and in arrest of judgment were filed and overruled. Thereafter sentence was pronounced, and judgment entered against appellant, in conformity to the verdict. Defendant, in due time, appealed to this court.

The evidence in behalf of the state tended to prove that Dorothy Barrett was a female child, 15 years of age on May 16, 1922; that on said date she lived with her mother and stepfather, Terry Nevitt, in Kansas City, Mo.; that on said 16th day of May, 1922, the prosecutrix was sick in bed at her home; that about 5 o'clock in the afternoon of said last-mentioned date, defendant came to her room and, after complimenting her form, had sexual intercourse with her; that she said nothing to any one about the matter, until about February 24, 1923, when she told her mother that defendant had had sexual intercourse with her on above date.

Fred S. Pennington was a roomer at the home of the Nevitts on February 27, 1923, when appellant was arrested. He testified that the mother of Dorothy Barrett told the officers who arrested appellant that he had had sexual intercourse with prosecutrix on the date aforesaid; that the defendant then said in their presence, 'I am guilty and ready to take my medicine.'

E. J. Dobbinson, a police officer of Kansas City, Mo., on February 27, 1923, arrested defendant upon the charge of having committed statutory rape upon Dorothy Barrett. He testified that defendant, when arrested, said he was guilty, and wanted to get it over with as soon as possible.

Appellant introduced evidence to the effect that his general reputation for truth and morality was good. He testified that he never had sexual intercourse with prosecutrix at any time, nor did he ever have any improper relations with her.

The instructions and rulings of the court will be considered later.

Opinion.

I. The verdict of the jury is sustained by substantial testimony as to prosecutrix being a female child under 16 years of age; and as to defendant having had sexual intercourse with her in Jackson county, Mo., while she was under 16 years of age. The prosecutrix testified as to the sexual intercourse, and the admissions made by defendant in the presence of Pennington and Dobbinson corroborate her testimony on this subject. The trial court committed no error in overruling defendant's demurrer to the evidence. Section 3247, R. S. 1919, as amended by the Laws of 1921, p. 284a; State v. Houston (Mo. Sup.) 263 S.W. loc. cit. 222, 223; State v. Cox (Mo. Sup.) 263 S.W. loc. cit. 217, and cases cited; State v. Hamilton (Mo. Sup.) 263 S.W. loc. cit. 128, 129, and cases cited; State v. Ansel (Mo. Sup.) 256 S.W. 762 et seq.; State v. Bryant (Mo. Sup.) 252 S.W. 371; State v. Sanders, 299 Mo. 192, 252 S.W. 633; State v. Comer, 296 Mo. 1, 247 S.W. 179; State v. Loness (Mo. Sup.) 238 S.W. 112; State v. Belknap (Mo. Sup.) 221 S.W. 39.

II. Appellant contends that instruction numbered 1, given by the court, is erroneous, for the alleged reason that it refers the jury to the indictment, instead of telling them what they should convict him for if found guilty. Said instruction reads as follows:

'The court instructs the jury that if you find and believe from the evidence that the defendant, Terry Nevitt, at the county of Jackson and state of Missouri, on or about the 16th day of May, 1922, or at any time within three years prior to the 8th day of May, 1923, the date of the filing of the indictment in this case, did carnally know Dorothy Barrett, and that the said Dorothy Barrett was then and there a female child under the age of 16 years, you will find him guilty as charged in the indictment and assess his punishment at death or imprisonment in the state penitentiary for a term not less than two years.

'By the term 'carnally know' as used in these instructions is meant the actual penetration of the female private parts by the private parts of the male in the act of sexual intercourse.'

We have examined the authorities cited by appellant in support of above contention and find that they are without the slightest application to the question before us. The court in said instruction clearly pointed out the facts which it was necessary for the jury to find, in order to sustain a conviction, without regard to the indictment. The above assignment is trivial in its nature and is devoid of the slightest merit. State v. Hembree, 295 Mo. 1, 242 S.W. loc. cit. 914, 915; State v. Langford, 293 Mo. 436, 240 S.W. loc. cit. 168, 169; State v. Byrd, 278 Mo. loc. cit. 433, 213 S.W. loc. cit. 36, 37; State v. Burgess (Mo. Sup.) 193 S.W. loc. cit. 826.

III. The court is charged with error in giving instruction 3, which reads as follows:

'The court instructs the jury that although they may believe from the evidence that, in the commission of the offense charged in the indictment, there was no force used by the defendant on Dorothy Barrett, yet if the jury believe from the evidence that at any time before the filing of the indictment in this case at the county of Jackson and state of Missouri, and while she was under 16 years of age, the defendant had carnal, sexual intercourse with the said Dorothy Barrett, then you will find the defendant guilty.'

The disposition which we made of the preceding proposition applies with equal force to this assignment, which is overruled.

IV. The criticism of instruction 4, given by the court, is...