State v. Northern, 55998
| Decision Date | 08 November 1971 |
| Docket Number | No. 1,No. 55998,55998,1 |
| Citation | 472 S.W.2d 409 |
| Parties | STATE of Missouri, Respondent, v. William NORTHERN, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for respondent.
Rodney Weiss, Sanford Goffstein, Rosenberg, Weiss, Goffstein & Kraus, St. Louis, for appellant.
In a trial before the court, defendant was found guilty of rape and sentenced to ten year's imprisonment. He appeals.
The defense was consent and cooperation. Defendant was prosecutrix's brother-in-law. Each was thirty six years old and lived, with their respective spouses, in the same general area in St. Louis and the two families were together frequently. The prosecutrix's account was that defendant came to the apartment at night while her husband was away at work, was admitted on the pretext his wife was sick and wanted her, and once inside forced her into the bedroon and assaulted her. Defendant's version was that he stopped by to leave her some food he had picked up at a drive-in, that she, in her nightgown, led the way back to the bedroom, and willingly engaged in intercourse.
Defendant's contention is that the testimony of the prosecutrix is contradictory, not convincing, leaves many doubts and hence her uncorroborated testimony is not sufficient to sustain his conviction, citing State v. Quinn (Mo.Sup.) 405 S.W.2d 895, 897, where the rule has been recently stated.
The trial court resolved the case on the issue of credibility, saying '* * * this is simply a case of believability to me and Mrs. Walker's testimony is more believable, particularly in view of the medical corroboration and the other corroborated testimony * * *' The court, no doubt, had reference to the testimony as to swollen lips (defendant hit her on the mouth, she said, and loosened a tooth, which fell out a few days later), stains on the sheet (observed by the investigating officer, in contrast to defendant's testimony that she had spread a towel on the bed), and the fact that prosecutrix was still having a vaginal discharge as aftermath of birth of her child a month before (making voluntary intercourse less likely). Additionally, if it were a case of consent and cooperation, there would be no reason why she would have told her husband about it when he arrived home from work a few hours after the event, as she did. Also, we note that while defendant and prosecutrix had known each other for some time and prosecutrix had stayed at the house of defendant and wife for a month or so before she married the brother of defendant's wife, there even being occasions when she and defendant were alone in the house at night when defendant's wife was in the hospital, defendant made no claim of prior intimacies, although had such been the fact, it would have been admissible '* * * as showing an inclination on her part to consent to his embraces and thus negating an essential element of the crime charged * * *', Wigmore on Evidence, 3rd ed., Vol. II, Sec. 402, p. 369; see also Vol. I, supra, Sec. 200, p. 688.
Under these circumstances, we do not consider the failure of the prosecutrix to attract attention by screaming (her testimony was he said he would kill her if she did) or defendant's not leaving the house until 4:30 a.m. although the intercourse was over around 2:30 a.m., or her failure to arouse the neighbors after he departed (she testified she had no telephone, the landlady was on vacation, and the girls living in the upstairs apartment were apparently not at home) or the police not being called until after her husband got home, means the evidence fails to sustain the verdict.
Defendant contends we should review the case de novo and that not to do so is an unconstitutional discrimination between civil and criminal litigants in jury-waived cases, and destroys the concept that findings of fact should be examined at least once before they are given any degree of finality. But the Missouri constitution expressly provides the findings of the trial court in a jury-waived criminal case shall have the force and effect of a verdict of a jury, Art. I, Sec. 22(a), V.A.M.S., and so the question on appeal is whether there was substantial evidence to support the finding, State v. Hatfield (Mo.Sup.), 465 S.W.2d 468, 470.
We do not see why Missouri cannot constitutionally handle appeals in jury-waived criminal trials this way. No discriminating application is made against defendant. If a justification is...
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