State v. Palmberg

• Decision Date: 20 November 1906
• Citation: 97 S.W. 566,199 Mo. 233
• Parties: STATE v. PALMBERG.
• Court: Missouri Supreme Court

97 S.W. 566

199 Mo. 233

STATE v. PALMBERG.

Supreme Court of Missouri, Division No. 2.

November 20, 1906.

1. RAPE—EVIDENCE—PREVIOUS ACTS OF INTERCOURSE.

On a trial for rape on a female under the age of 14 years, evidence of prior acts of intercourse between accused and prosecutrix is admissible as tending to prove the particular act on which a conviction is sought.

2. SAME.

On a trial for rape on a female under 14 years of age, evidence of subsequent acts of intercourse between accused and prosecutrix is inadmissible, for proof of such acts have no tendency to prove the act charged.

3. CRIMINAL LAW — TRIAL — ELECTION BETWEEN ACTS.

Where, on a trial for rape committed on a female under 14 years of age on a date specified, the prosecutrix testified to the commission of the offense on that day and to subsequent acts of intercourse during a period of nearly a year, it was the duty of the court to confine the consideration of the jury to but one of the offenses, and the state, at the close of its case, should have been required to elect as to which act it would rely on for a conviction.

4. SAME.

Where, on a trial for rape on a female under the age of 14 years, the prosecuting attorney shows at the commencement of the trial that he knows he can prove the commission of several offenses, the court should require him to elect the act which he will rely on, and prevent him from showing the commission of offenses subsequent thereto, while, if the prosecuting attorney has but little information as to what the testimony will develop, the court should not compel an election until the close of the state's case.

5. SAME.

On a trial for rape on a female under the age of 14 years, the state fully developed its case and showed the commission of several offenses. The verdict of conviction was set aside. Held, that the state on a retrial should be required to elect, at the beginning of the case, on which act it would rely for a conviction.

6. RAPE—EVIDENCE—EXHIBITION OF PROSECUTRIX'S CHILD.

Where, on a trial for rape on a female under 14 years of age, the prosecutrix testified that she became pregnant and gave birth to a child as the result of the intercourse, it was proper to permit her to exhibit the child.

7. WITNESSES — EXAMINATION — REFRESHING MEMORY—PROOF OF AGE.

A physician attending a mother at the birth of a child, who is enabled by reason of refreshing his memory from a memorandum book indicating the fact that he attended the mother at that time, to reasonably fix the date of the birth of the child, is competent to testify to the date of the child's birth.

8. RAPE—INSTRUCTIONS.

An instruction, on a trial for rape on a female under 14 years of age, that it was the duty of the prosecutrix to complain of the offense as soon as opportunity was afforded her, and a failure to make such complaint rendered the charge improbable, was properly refused, because applicable only to cases where, to constitute rape, the act of intercourse must be accomplished by force and violence and against the will of the female.

Appeal from Circuit Court, Cooper County; Wm. H. Martin, Judge.

Ira Palmberg was convicted of rape, and he appeals. Reversed and remanded.

On the 15th day of May, 1905, the prosecuting attorney of Cooper county filed an information against the defendant that contained two counts. The first count charged that on or about the 20th day of October, 1903, the defendant carnally knew one Florence Widdicombe, a female child alleged to be under the age of 14 years. The second count charged that defendant had made an assault upon the said Florence Widdicombe on or about the 27th day of August, 1904, and alleged that said Florence Widdicombe was then and there an unmarried female of previous chaste character between the ages of 14 and 18 years. The defendant filed a motion to compel the state to elect upon which count of the information the state would go to trial. The motion was sustained, and the state elected to go to trial upon the first count, and the trial proceeded upon that count.

The testimony on the part of the state tended to show that the prosecutrix was born in Pettis county, Mo., on the 27th day of August, 1890, and that her parents were named Coselet; that her mother died when she was quite young, and she was adopted by Mr. and Mrs. Henry Widdicombe. The prosecutrix testified that the defendant had intercourse with her on several occasions—the first time, some time about the 20th of October, 1903; one time, when she was in the woods driving up her foster father's cow; at another time, at the home of the prosecutrix, when her foster parents were absent; another time, on the road—and also testified that the defendant continued to have intercourse with her until she arrived at the age of 14 years, and that such acts of intercourse occurred every week or so. There was further evidence offered on the part of the state which disclosed the fact that as a result of this intercourse the prosecutrix became pregnant and gave birth to a child, and the state, over the objections of the defendant, exhibited such child to the jury. On the part of the defendant he testified in his own behalf and denied having intercourse with prosecutrix. His testimony directly contradicted that of the prosecutrix. There was other evidence introduced on the part of the defendant tending to impeach the prosecutrix and her foster parents as to conflicting statements made by them in reference to the age of the prosecutrix. There was also other testimony which tended to prove the bad reputation of the foster parents of the prosecutrix for truth and veracity. Defendant then offered evidence tending to show his good reputation for morality and as a law-abiding citizen. In rebuttal the state offered evidence to show the good reputation of Mr. and Mrs. Widdicombe for truth and honesty. There was other evidence introduced in the case, which will be referred to and discussed during the course of the opinion. This, however, is a sufficient statement of the case to enable the court to determine the legal propositions involved.

At the close of the case the defendant, before proceeding to introduce his testimony, moved the court to compel the state to elect upon which one of the acts of intercourse, as testified to by the prosecutrix, it would proceed to go to the jury. The motion was overruled, and at the close of all the evidence the defendant renewed such motion, and it was likewise overruled. The cause was submitted to the jury upon the evidence and instructions of the court, and they returned a verdict finding the defendant guilty as charged in the information, and assessed his punishment at imprisonment in the penitioniary for a term of five years. Timely motions for new trial and in arrest of judgment were filed and by the court overruled. Sentence and judgment were entered of record by the court, and from this judgment the defendant in due time and proper form prosecuted his appeal to this court, and the record is now before us for consideration.

W. F. Quigley, W. V. Draffen, and C. D. Corum, for appellant. The Attorney General and N. T. Gentry, for the State.

FOX, J. (after stating the facts).

The record in this cause discloses many complaints by appellant, based upon the action of the trial court during the progress of the trial. The most serious proposition confronting us upon this record arises upon the testimony of the prosecutrix and the law as declared by the court, predicated upon such testimony. The record discloses that the prosecutrix, Florence Widdicombe, testified when she first took the witness stand that in October, 1903, the defendant pulled her off a horse and forcibly had intercourse with her. In her testimony she details all the facts surrounding this particular time at which she claims the defendant forcibly ravished her. Upon further examination she then proceeded to detail other separate and distinct acts of intercourse had between her and the defendant subsequent to the one which she had narrated as having occurred in October, and she was finally permitted to testify that the defendant continued to have intercourse with her until she arrived at the age of 14 years, and that such acts of intercourse occurred every week or so. To this evidence of subsequent acts of intercourse the defendant interposed an objection, and to fully appreciate such objection we here reproduce it. It was as follows: "The defendant objects to what occurred at that time, for the reason that whatever did occur cannot be competent in this case. I assume that the purpose of the inquiry is to elicit evidence tending to show that the defendant, on days other than and subsequent to the occasion mentioned in evidence already, had intercourse with the prosecuting witness. In other words, the state expects to offer in evidence testimony tending to show another rape upon the prosecuting witness at a different time. We object, for the reason that it is another substantive offense, and evidence of other crimes is not competent in any case, unless it be for the purpose of showing intent, motive, or malice, and in this case there is no specific intent necessary to commit the crime. No motive or malice is necessary to be shown, and the evidence of another separate and distinct crime is absolutely incompetent in this case, as tending to throw no light upon the inquiry under investigation." The objection was overruled by the court.

At the close of the state's case, and before the defendant went on the stand to testify in his own behalf, he requested the court to compel the state to elect upon which of the alleged acts of intercourse, as testified to by the prosecutrix, it would rely for a conviction. This motion was also by the court overruled, and the defendant again, at the close of the case, renewed such motion in writing to compel the state to elect upon which of the acts of intercourse, as testified to by the prosecutrix, it would go to the...