State v. Perkins

• Decision Date: 09 December 1946
• Docket Number: No. 39922.,39922.
• Citation: 198 S.W.2d 704
• Parties: STATE v. MARSHALL PERKINS, Appellant.
• Court: Missouri Supreme Court

198 S.W.2d 704

STATE v. MARSHALL PERKINS, Appellant.

No. 39922.

Supreme Court of Missouri.

Court en Banc, December 9, 1946.

Rehearing Denied, January 13, 1947.

Appeal from Jackson Circuit Court. — Hon. Thomas J. Seehorn, Judge.

AFFIRMED.

Carl R. Johnson for appellant.

J.E. Taylor, Attorney General, and W. Brady Duncan, Assistant Attorney General, for respondent.

(1) The court did not err in overruling defendant's Assignment No. 1 of his motion for new trial, which is as follows: "That the verdict is against the evidence, against the weight of the evidence, and against the law, under the evidence." Sec. 4125, R.S. 1939; State v. Keller, 104 S.W. (2d) 247; State v. Kennedy, 108 S.W. (2d) 384. (2) Assignment No. 2 of defendant's motion for new trial, "That the verdict was for the wrong party," presents nothing for review. Sec. 4125, R.S. 1939; State v. Higginbotham, 335 Mo. 102, 72 S.W. (2d) 65. (3) The court did not err in overruling Assignments numbered 3, 6 and 11, because they were too general. Sec. 4125, R.S. 1939; State v. Davis, 161 S.W. (2d) 973; State v Lowry, 321 Mo. 870, 12 S.W. (2d) 469. (4) The court did not err in admitting in evidence the written confession of defendant. Sec. 4215, R.S. 1939; State v. Gibilterra, 342 Mo. 577, 116 S. W (2d) 88; State v. Golden, 353 Mo. 585, 183 S.W. (2d) 109. (5) The court did not err in admitting in evidence a recording made by defendant, confessing the crime charged against him. Sec. 4125, R.S. 1939; 22 C.J.S., Criminal Law, sec. 731; State v. McGee, 336 Mo. 1082, 83 S.W. (2d) 98; Wigmore, Science of Judicial Proof (3rd Ed. 1937), sec. 228, p. 487; Schoborg v. United States, 264 Fed. 1; Commonwealth v. Wakelin, 230 Mass. 567, 120 N.E. 209; State v. Hester, 134 S.E. 885, 137 S.C. 145; Brindley v. State, 69 So. 536, 93 Ala. 43; State v. Simon, 174 Atl. 867, 113 N.J.L. 521. (6) The court did not err in overruling demurrer offered at the close of State's case. State v. Kelly, 107 S.W. (2d) 19; State v. Lebo, 339 Mo. 960, 98 S.W. (2d) 695. (7) The court did not err in overruling Assignments numbered 8, 9, and 10 of defendant's motion for new trial. Sec. 4125, R.S. 1939; State v. Carpenter, 169 S.W. (2d) 403; State v. Wampler, 58 S. W (2d) 266. (8) The court did not err in overruling Assignment No. 12 of defendant's motion for new trial as to improper argument. Sec. 4125, R.S. 1939.

LEEDY, J.

Appellant (to whom we shall refer as defendant) was convicted in the Circuit Court of Jackson County of the offense of rape. He has appealed from the judgment sentencing him, in accordance with the verdict, to the extreme penalty; but he has filed no brief. He is a negro, either 50 or 59 years of age (at the time of trial), and was charged as an habitual criminal under Secs. 4854, 4855, R.S. '39 and Mo. R.S.A. Notwithstanding his formal admission of his several prior felony convictions, imprisonment thereunder, and subsequent discharges¹ the jury made no finding in its verdict on that aspect of the case. In the trial court he was defended by two attorneys, one of whom the record shows was appointed by the court upon his own designation and request.

During the evening of Saturday, June 2, 1945, the prosecutrix, Gladys, a 13-year-old white girl, attended a picture show at a neighborhood theatre on Independence Avenue near Prospect in Kansas City. The alleged offense was committed while she was returning to her home at 2613 East 11th Street, a distance of 5½ blocks. The show was over about 10:30 P.M., and Gladys, and three friends, all children (Rosalie and Wilda, each 11 or 12 years of age, and Wilda's six-year-old brother, Billy) walked south together on Prospect to 9th Street, where Rosalie, Wilda and Billy entered a tavern to join the parents of Wilda and Billy. From 9th Street Gladys proceeded alone. She continued south on Prospect to 11th Street, and turned east on 11th. Her home was on the south side of 11th about a half block east of Prospect. While yet with the other children she had noticed a negro walking in the same direction on Prospect, but on the other side of the street. As she was turning east off of Prospect onto 11th Street, she observed the negro at sufficiently close range under the street light at that intersection to be able to describe his dress. She walked a short distance east on 11th Street, and when at or near an alley intersection, the negro came up behind her, grabbed her by the throat, and told her to be quiet. She screamed and he said, "Shut up, or I will cut your throat." He dragged her north into the alley, and then she fainted or lost consciousness. The next thing she remembered was hearing her father call. She was then on the dirt floor of a tin garage in the alley (150 or 200 feet north of 11th Street), and the defendant's body was over hers. When the father came to the garage door and called, the negro got up and ran.

Rosalie and Wilda had stopped at the tavern only momentarily, and then proceeded to Rosalie's home at 1019 Prospect. Wilda and her little brother did not testify, they having in the meantime removed from Kansas City. Rosalie testified that as she and Wilda reached her home, she heard some screams coming from the direction in which Gladys lived; that she and Wilda returned at once to the tavern, and thence to Gladys' house, where it was found that Gladys had not yet returned. Gladys' parents had retired. They dressed quickly and instituted search for the child, and Rosalie called the police. The father went north up to the alley to some garages, striking matches and looking along the sides of the alley. He testified he heard a moan and started to the garage door, and as he did so, "out this fellow (defendant) popped." The negro attempted to strike him, and he attempted to strike the negro. The father thought that he "did kind of touch him, that is all, because he was going away from me." When he jerked the door open, and found his daughter lying on the floor, "her clothes was tore off of her, scattered around the garage." The negro ran south down the alley, and the father gave chase. He called to his wife, who was standing at the mouth of the alley at 11th Street, and told her to stop him. There was a street light nearby. The wife stuck out her arm and the negro "hit her arm and just turned her clear around." He ran south across 11th Street, and continued down the alley until he reached an east and west alley, then turned west. By the time he reached Prospect the father had gained ground, and was within 10 feet of him when the father fell. There was a street light at that alley entrance, — "there sure was plenty of light" — and the negro "was running and looking back," and the father "got a good look at his face as he went across Prospect." He also observed the negro's dress. After the father fell, the negro "pulled away", continuing in the alley west toward Wabash until he ran between two apartments, disappeared, and was lost in the darkness.

Gladys came out of the garage crying, and her blouse, skirt and panties were missing, and her petticoat was torn, "split clear down the front to the bottom seam." She was taken home, and when the police arrived, they found her in a semi-hysterical condition. "Her throat was black and blue with fingerprints on her neck, and on her chest were skinned places." Her coat or jacket, panties (which had been torn off of her had a hole in them — "looked like a piece missing as if it had been cut"), a torn piece of the blouse material containing the buttons, her novelty pin, and two handkerchiefs (one of which was hers) were found scattered over the floor of the garage, and in that condition photographed by the police.

The police took her at once to General Hospital for examination. Without setting forth the findings of Dr. David H. Glenn, the examining physician, it is sufficient to say that he testified to unmistakeable evidence of penetration, and gave it as his very definite opinion there had been penetration. At the police "show up," on Tuesday morning, defendant was identified by prosecutrix and her parents, who were likewise positive in their identification of him at the trial.

Defendant was arrested on Monday, June 4, and confessed. On Tuesday morning a recording was made of another conversation he had with a police officer wherein he detailed the crime. Very shortly thereafter he signed a written confession. The recording was "played to the jury", and his written confession was received in evidence. In substance, (and omitting certain formal recitals and matters not here relevant), they were both as follows: He gave his age as 59, widower, residing at 3230 East 9th where he was janitor of some apartments. Saturday afternoon he separately purchased and drank two bottles of wine and two bottles of beer, went home and changed his clothes, then bought another bottle of wine; then went to his brother's house in the six or seven hundred block on Harrison or Campbell where he met another brother and their sister; then all went down on the Avenue [Independence], and went to two taverns and drank whiskey, beer and wine until about 11:30 when the taverns were getting ready to close; they left the tavern, and he walked a little way with his brothers and sister, and they went their way, and he went his.

The written statement continues, "I was pretty tipsy and I walked down Harrison to 7th Street and across 7th Street to Prospect. I kept on walking south on Prospect to 10th or 11th Street. I do not remember whether it was 10th or 11th Street but I saw a white girl walking east from Prospect. This girl looked to be about 16 years old. I asked her where she was going and she said she was going home. I said: `Can I walk that way with you?' She said she did not care if I did not bother her. I told her I would not bother her. I then placed my arm around this girl and were at the alley at this time, just east of Prospect. I said: `Let's go up this way' — meaning the alley. She said: `No, I'm...