State v. Palmberg
| Decision Date | 20 November 1906 |
| Parties | STATE v. PALMBERG, Appellant |
| Court | Missouri Supreme Court |
Appeal from Cooper Circuit Court. -- Hon. Wm. H. Martin, Judge.
Reversed and remanded.
W. F Quigley, W. V. Draffen and C. D. Corum for appellant.
(1) (a) Upon reason and authority the court erred in permitting the State to introduce evidence of acts of intercourse subsequent to October, 1903. People v. Clarke, 33 Mich. 112; People v. Flower, 104 Mich. 449; People v Etter, 81 Mich. 570; People v. Robertson, 88 A.D. 198; State v. Neel, 23 Utah 542; State v Hillberg, 22 Utah 27; State v. Donovan, 61 Iowa 278; State v. Oden, 100 Iowa 22; Pope v. State, 34 So. 840; Ball v. State, 72 S.W. 384; Smith v. State, 73 S.W. 401; Barnett v. State, 44 Tex. Crim. 592. (b) Independent crimes of any character are never competent except in those cases where it is necessary for the State to establish intent, motive, malice, etc. In this case the act carries with it the intent. State v. Spray, 174 Mo. 589; State v. Goetz, 34 Mo. 85; State v. Daubert, 42 Mo. 242; State v. Parker, 96 Mo. 389; State v. Jackson, 95 Mo. 649. (c) Other acts of intercourse, prior or subsequent, are not competent to prove a substantive offense upon which a conviction can be had. And the cases which hold that prior acts of intercourse are admissible lay down the rule that they are competent only to corroborate and explain the evidence of the act charged. This is the only ground upon which prior acts are admissible. People v. Jenness, 5 Mich. 305; People v. Tenelshof, 92 Mich. 167; State v. Knapp, 45 N.H. 148; Mitchell v. People, 24 Colo. 532; Wharton's Criminal Evidence, sec. 35; State v. Neel, 23 Utah 542; State v. Hillberg, 22 Utah 34. (d) This being the only purpose for the admission of such testimony, either prior or subsequent, it follows that the court should have instructed the jury in regard to the purpose for which this evidence was admitted. This the court failed to do. Cox v. State, 44 S.W. 157; Sykes v. State, 112 Tenn. 581. (2) The court erred in refusing to sustain defendant's motion to elect. It is wellsettled law that in cases where other acts of intercourse have been admitted in evidence the State is compelled to elect upon which act it will go to the jury. Smith v. Com., 60 S.W. 530; People v. Castro, 133 Cal. 11; People v. Williams, 133 Cal. 168; People v. Flaherty, 162 N.Y. 532; State v. Hillberg, 22 Utah 27; State v. Atcheson, 91 Me. 240; Stone v. State, 73 S.W. 956; 1 Bishop's Crim. Pro., sec. 459. (3) The court erred in refusing the instruction requested by defendant as to the duty of the prosecutrix to make complaint. The refused instruction was a cautionary one, and the jury ought to have been advised as to the importance the law attaches to silence under such circumstances, in order that they might be better prepared to give her testimony such weight as it was entitled to, and no more. State v. Witten, 100 Mo. 525; State v. Wilson, 91 Mo. 410; State v. Patrick, 107 Mo. 147; Champagne v. Hamey, 189 Mo. 722. (4) The court erred in permitting the child to be exhibited to the jury, over the objection of defendant. State v. Neel, 23 Utah 541; People v. Carney, 29 Hun 47; Hanawalt v. State, 64 Wis. 84; Reitz v. State, 33 Ind. 187; Risk v. State, 19 Ind. 152; Robnet v. People, 16 Ill.App. 299; Young v. Makepeace, 103 Mass. 50; Clark v. Bradstreet, 80 Me. 464; Barnes v. State, 39 S.W. 684; State v. Harvey, 112 Iowa 416.
Herbert S. Hadley, Attorney-General, N. T. Gentry, Assistant Attorney-General, and Chas. W. Journey for the State.
(1) No error was committed by the trial court in permitting the prosecutrix to testify to acts of sexual intercourse between her and defendant other than the one charged in the indictment. This court has held that evidence of a prior attempt to commit rape was admissible when the charge against the defendant was rape. State v. Patrick, 107 Mo. 147. "It is also held that on a prosecution for rape of a girl under the age of consent, testimony of subsequent as well as prior acts of illicit intercourse between the parties is admissible to corroborate her." 4 Elliott on Evidence, sec. 3105; State v. King, 117 Iowa 768; People v. Edwards, 73 P. 416; State v. Borchert, 68 Kan. 360; Smith v. Com., 22 Ky. L. 1349; State v. Robertson, 121 N.C. 551; Hamilton v. State, 36 Tex. Crim. 372; Woodruff v. State, 101 N.W. 1117. (2) The court committed no error in allowing the jury to see the child of prosecutrix, which she carried in her arms while in the court room. 4 Elliott on Evidence, sec. 3028; 2 Wigmore on Evidence sec. 1157; Underhill on Crim. Evid., sec. 48.
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 fourteen 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 fourteen and eighteen 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, Missouri, 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; at another time on the road; and she also testified that the defendant continued to have intercourse with her until she arrived at the age of fourteen 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 penitentiary 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.
OPINION.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 fourteen 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...
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