State v. Ottinger

• Decision Date: 25 March 1931
• Docket Number: 30934
• Citation: 36 S.W.2d 942
• Parties: STATE v. OTTINGER
• Court: Missouri Supreme Court

36 S.W.2d 942

STATE v. OTTINGER

No. 30934

Supreme Court of Missouri, Second Division

March 25, 1931

Stratton Shartel, Atty. Gen., and Walter E. Sloat, Asst Atty. Gen., for the State.

OPINION

WESTHUES, C.

The learned Attorney General has made a fair statement of the facts in this case, and therefore we adopt it as our own.

'On September 19, 1928, an information was filed in the Circuit Court of Howell County, Missouri, charging the defendant, Cal Ottinger, with the crime of carnal knowledge. On October 4th 1928, a continuance was granted to the defendant. On February 4th, 1929, the cause came on to be heard, whereupon the defendant filed his application to disqualify the regular Judge, Honorable Will H. D. Green, and said application was sustained.

'By agreement between the defendant and the prosecuting attorney the Honorable E. P. Dorris, former Judge of that circuit, was selected as a special judge to try the cause and he thereupon sustained defendant's application for a continuance. On October 16th, 1929, the defendant was placed on trial, waived formal arraignment and pleaded not guilty. The jury after hearing the evidence returned a verdict finding defendant guilty and fixing his punishment at two years in the penitentiary. A motion for a new trial was filed and overruled, judgment was rendered, sentence pronounced, and an appeal thereupon granted to this court.

'The evidence was substantially as follows:

'The prosecuting witness was Kathlyn Oliver, fourteen years of age living with her father at Willow Springs in Howell County, Missouri. Some time during the early part of July, 1927, during the evening Kathlyn in company with her younger sister was on her way to a basket ball game in Willow Springs. On what is knows as Siletos corner she met the defendant Cal Ottinger, a man at that time some sixty-eight years of age. Ottinger told the younger sister to stand there on the corner and wait for them while he took Kathlyn by the arm and led her down the street a short distance thence up an alley and into a vacant house which the evidence shows was owned by defendant's wife; there he proceeded to have intercourse with her. This was continued several times over a period of the next few weeks, the defendant usually giving Kathlyn a small amount of money. The State introduced further testimony to show that Ottinger had bought candy for the girl at various times and a Mrs. Williamson, who ran a boarding house in Willow Springs, testified that one morning while on her way to market to purchase her groceries she had met defendant and Kathlyn talking near a hardware house. Just as she turned the corner some twenty-five feet away she saw the defendant hand the prosecuting witness fifty cents at the same time taking undue liberties with her.

'The defendant took the stand and made a general denial of all the charges. Several witnesses were offered by the defense to prove that the defendant's character was good, while that of prosecuting witness was bad.

'Evidence was also offered by the defense to prove that the prosecuting witness had made the statement that 'her father had made her testify against the defendant' This evidence was offered apparently to convey the impression to the jury that the defendant was a man of means and would offer to settle the case with the father of the prosecuting witness rather than go to trial on such a serious charge.'

We have examined the record proper and find the information sufficient. Defendant was arraigned and entered a plea of not guilty. A jury was duly impaneled and defendant tried. The jury returned a verdict of guilty and assessed defendant's punishment at two years in the state penitentiary. The sentence followed the overruling of the motion for new trial. In the motion for new trial, only three questions are preserved for our review. The first assignment of error is as follows: 'Because the Hon. E. P. Dorris did not have jurisdiction to try this cause, for the reason that when the Hon. Will H. D. Green, Judge of the 20th Judicial Circuit, was disqualified to try this cause the said Hon. E. P. Dorris was not elected in writing as Judge to try this cause as provided by section 3992, R. S. 1919, as shown in the affidavit of W. L. Hiett hereto attached and herewith filed.'

Section 3992, R. S. 1919 (now section 3649, R. S. 1929), provides when the regular judge is disqualified 'the defendant and prosecuting attorney may by agreement in writing, with the concurrence and approval of the court, elect some attorney at law, who possesses all the qualifications of a judge of the circuit court, as special judge in said cause.'

The record entries, with reference to the point involved, are as follows:

'Special Judge.

'Thereafter, on the 4th day of February, 1929, defendant filed application to disqualify Judge; application was sustained, E. P. Dorris selected by agreement of both parties to try said cause.

'Continuance.

'Thereafter, on the same day, to wit, the 4th day of February, 1929, application for continuance was filed by Defendant, which continuance was sustained and cause continued until the next term of Court.

'Thereafter, on the 3rd day of June, 1929, this cause was again continued on application and at cost of Defendant.

'Arraignment and Plea.

'Now on the 16th day of October, 1929, defendant waived arraignment and entered his plea of not guilty.'

The above record entries disclose that the defendant filed an application to disqualify the regular judge; that by an agreement of both parties, in open court, E. P. Dorris was selected to try the case. Defendant applied for and was granted two continuances before the special judge. He was then arraigned and pleaded 'not guilty.' At the trial the defendant was convicted and sentenced to two years in the penitentiary. Defendant at no time before or during the progress of the trial complained to the court that the above statute had not been complied with. The point is first raised in the motion for new trial. Corpus Juris says persons procuring or...