State v. Palmer
| Decision Date | 14 October 1957 |
| Docket Number | No. 45717,No. 1,45717,1 |
| Citation | 306 S.W.2d 441 |
| Parties | STATE of Missouri, Respondent, v. Chester PALMER, Appellant |
| Court | Missouri Supreme Court |
Raymond H. Vogel, Cape Girardeau, for appellant.
John M. Dalton, Atty. Gen., Richard W. Dahms, Asst. Atty. Gen., for respondent.
VAN OSDOL, Commissioner.
Defendant was convicted of rape by carnal and unlawful knowledge of a female child under the age of sixteen years. Section 559.260 RSMo 1949, V.A.M.S. His punishment was assessed by the jury at six years in the state penitentiary. Herein upon appeal from the ensuing judgment defendant-appellant makes the primary contention that the evidence was insufficient to justify the submission of the State's case to the jury. It is said the testimony of the prosecutrix was conflicting and uncorroborated--especially her testimony relating to essential fact of penetration. It is further contended that the trial court abused its discretion in permitting leading questions, and that the answers of prosecutrix were under compulsion. Defendant-appellant also contends error in instructing the jury, and complains of an incident which occurred while the jury was engaged in its deliberations.
There was evidence introduced tending to show that in 1955 prosecutrix, born September 2, 1943, resided with her parents a block or so from the home of defendant in Fornfelt. Defendant lived apart from his wife, but had in his home his small son, Ivan, four years old. When working away from home defendant occasionally employed prosecutrix to stay with Ivan.
One afternoon in the summer of 1955 defendant had returned from work. Prosecutrix, who had stayed with Ivan that day, had prepared defendant's supper and, after he had eaten, defendant asked prosecutrix to wash the dishes. Prosecutrix put water on the stove to heat, and then sat with defendant on a bed in the front room. Prosecutrix testified that defendant importuned her to have sexual intercourse with him and, when she refused, defendant said, 'I was going to anyway.' Defendant pushed prosecutrix down on the bed and pulled off her undergarment. He 'unzipped' his pants, 'took his privacy out,' and got on top of prosecutrix.
Prosecutrix was hesitant in testifying of the subsequent events. She seemed to be timid or in fear. She asked if she had to testify in the presence of the defendant. When she failed to promptly answer questions, the trial court permitted State's counsel to ask leading questions, and upon her continued hesitation in answering, the trial judge spoke of finding her in contempt and concluded by saying, 'It is your duty to answer the questions, if you know the answers.' Presently the interrogation of prosecutrix was continued and the following questions were asked of prosecutrix and the following answers given,
A neighbor, next door, testified she heard prosecutrix 'hollering 'Q, that hurts,' and 'quit."
Generally--particularly in supporting the charge of statutory rape--a prima facie case can be made on the uncorroborated testimony of the prosecutrix. And in rape cases generally the rule is that corroboration is not essential to prove the act of sexual intercourse unless the testimony of the prosecutrix is contradictory and in conflict with physical facts, surrounding circumstances, and common experience so as to be so unconvincing and improbable that it is extremely doubtful. State v. Burton, 355 Mo. 792, 198 S.W.2d 19; State v. Wood, 355 Mo. 1008, 199 S.W.2d 396; State v. Weekly, Mo.Sup., 223 S.W.2d 494. As we have said, it is contended by defendant-appellant that the testimony of prosecutrix in the instant case was contradictory and conflicting and that her testimony, particularly on the essential issue of penetration, was uncorroborated. But our examination of the record discloses that, although she testified reluctantly, her testimony was unequivocal, and not contradictory. It is true that, prior to trial, prosecutrix had said her testimony before the committing magistrate (that defendant had had sexual intercourse with her) was untrue. She also had written a note to defendant, after the preliminary hearing and prior to the trial of the cause, in which note was written, 'This I have said about Chester Palmer at (the committing magistrate's) Court is not so.' In explanation of making the statement and of writing the quoted note, prosecutrix testified that the statement and note were untrue, and that her testimony in the instant trial was true. She said that she had made the statement and had written the note because she 'was scared' of what defendant had told her. He had said 'that if I didn't * * * He said if I said Yes, that I would be sent to a home' and he 'would just get out and run around.'
Having examined the transcript of the testimony of prosecutrix, including the questions asked by the prosecuting attorney and the answers to the questions of defendant's counsel on cross-examination, we have the opinion the trial court did not abuse its discretion in permitting leading questions and did not err in ordering prosecutrix to testify. The power and the duty inhere in a court of justice, within the sphere of its jurisdiction, to compel witnesses to testify concerning relevant facts within their knowledge, unless they would be incriminated thereby, or unless the matter inquired of is privileged. Here, there is no inference to be drawn from the trial court's admonition other than that prosecutrix was required to testify to the truth. And a trial court has a large discretion in permitting leading questions where, as in the instant case, the witness, prosecutrix, was timid and embarrassed or unwilling. State v. Culpepper, 293 Mo. 249, 238 S.W. 801; State v. George, 214 Mo. 262, 113 S.W. 1116. We note the tender age of the prosecutrix; have related the statements which she said defendant had made to her; and have recited her unequivocal testimony in the trial of this case touching upon the issue of penetration. We think we should not hold that her testimony was unworthy of belief. In fact, her testimony was corroborated by the testimony of the neighbor who said she heard prosecutrix cry out. We think there was evidence of substantial probative value tending to show defendant's guilt, and we hold the evidence was sufficient to justify the submission of the issue of defendant's guilt of the crime as charged to the jury.
In instructing the jury the trial court submitted that if the jury 'believe and find from the...
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Tingley v. State
...of an indictment for sexual battery offenses, is not generally considered a substantive part of the charging document. See State v. Palmer, 306 S.W.2d 441 (Mo.1957); Martinez v. State, 77 Nev. 184, 360 P.2d 836 (1961); State v. Sysinger, 25 S.D. 110, 125 N.W. 879 (1910); Faulkner v. State, ......
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