State v. Pfeifer

• Decision Date: 15 February 1916
• Docket Number: No. 19020.,19020.
• Citation: 267 Mo. 23,183 S.W. 337
• Parties: STATE v. PFEIFER.
• Court: Missouri Supreme Court

183 S.W. 337

267 Mo. 23

STATE v. PFEIFER.

No. 19020.

Supreme Court of Missouri, Division No. 2.

February 15, 1916.

Appeal from St. Louis Circuit Court; W. T. Jones, Judge.

Charles Pfeifer, alias Charles N. Peters, was convicted of sodomy, and he appeals. Reversed and remanded for a new trial.

Defendant appeals from a conviction in the circuit court of the city of St. Louis on the charge of sodomy, and a resulting sentence in accordance with the verdict to imprisonment in the penitentiary for a term of two years. The case is a companion case to that of State v. Katz, 181 S. W. 425, decided at this term, but not yet officially reported. The facts and the acts of defendant here were the same as the facts and the acts of defendant Katz in the case supra. They transpired at the same time and place and were perpetrated upon the identical victim, one Mary Emmenegger. The only difference in the cases is that defendant here did not appear upon the scene or take part in the commission of the acts alleged till after Mary Emmenegger had been in the hands of Katz and his confederates for some two hours or more, and until she had been taken to the rear of a certain building mentioned in the Katz Case and called the old Cherokee Brewery. Thereupon and at that place defendant appeared and said to her that he was the head of these detectives, the boss over them, and that she would have to submit to the same things from him that she had submitted to from the others. Then the four of them, to wit, Katz, Long Gaussman, and this defendant took her to a point in the rear of the old brewery, where defendant assaulted her and thrust his private male organ into her mouth; the latter act constituting the phase of alleged sodomy charged and here relied on.

The facts are inexpressibly filthy, and, since they have been set out already, another cumbering of the books with their abysmal obscenity would subserve no useful purpose. The more so since, regard being had to the nature of the errors urged, it is obvious that a solution of them is to no substantial extent dependent upon the intimate details of defendant's attack upon the prosecuting witness. If, however, these details be found necessary to an understanding of the points, they may be read in the Katz Case.

Paeben & Friday, of St. Louis, for appellant. John T. Barker, Atty. Gen., and Lee B. Ewing, Asst. Atty. Gen., for the State.

FARIS, P. J. (after stating the facts as above).

I. The point is made that neither the information charges, nor the facts show, that defendant committed any crime known to the laws of this state. These contentions are both bottomed on the assumption that, since section 4726, R. S. 1909 (which was repealed and re-enacted in 1911, with an amendment [Laws 1911, p. 198]), dehors such amendment, refers us to the common law for a definition of sodomy, the amendment in question added nothing to it, and was, in fact, utterly nugatory; in short, that it is yet legally impossible, the statute to the contrary notwithstanding, to commit the crime of sodomy in the manner charged and proved in this case. These contentions have been ruled against defendant in the case of State v. Katz, supra, and with the holding on this point in that case we are content.

II. It is also strenuously urged that by the testimony of Dr. Vickery incompetent and hurtful evidence touching the physical condition of the prosecuting witness' private parts came into the case; this upon the theory that, since the charge here is sodomy perpetrated per os, testimony showing or tending to show a rape and sodomy per anum showed other crimes, and was therefore prejudicial and inadmissible. In this contention learned counsel loses sight of the fact that, while the testimony so bitterly complained of may have tended to show rape, and other acts of sodomy, ergo another sodomitical crime, yet the proof also showed that all of these acts and things were parts of the res gestæ and admissible as such, regardless of the fact that defendant may have been hurt by testimony concerning them. State v. Anderson, 252 Mo. 83, 158 S. W. 817. This was his misfortune for which he, and not the state, is at fault. He should see to it that he commits but one felony at a time. We disallow this contention so far as regards the phase of it set forth above.

Upon the alleged error bottomed upon the contention that an instruction ought to have been given restricting the purposes of this evidence of other crimes, it is sufficient to say that under the condition of this record we are not permitted to review any error based upon the instructions, since no exception is anywhere taken or saved to the giving or refusal to give any instructions in the case, or to the giving of the whole of the instructions. State v. Vinso, 171 Mo. 576, 71 S. W. 1034; State v. Eaton, 191 Mo. 151, 89 S. W. 949; State v. Urspruch, 191 Mo. 43, 90 S. W. 451; State v. Welch, 191 Mo. 179, 89 S. W. 945, 4 Ann. Cas. 681; State v. Dilts, 191 Mo. 665, 90 S. W. 782; State v. King, 194 Mo. 474, 92 S. W. 670; State v. McCarver, 194 Mo. 717, 92 S. W. 684; State v. Maupin, 196 Mo. 164, 93 S. W. 379; State v. Delcore, 199 Mo. 228, 97 S. W. 894; State v. Beverly, 201 Mo. 550, 100 S. W. 463; State v. Yandell, 201 Mo. 646, 100 S. W. 466; State v. Chenauth, 212 Mo. 132, 110 S. W. 696; State v. George, 214 Mo. 262, 113 S. W. 1116; State v. Sassaman, 214 Mo. 695, 114 S. W. 590; State v. Rhodes, 220 Mo. 9, 119 S. W. 391; State v. Nelson, 225 Mo. 551, 125 S. W. 505; State v. Kretchmar, 232 Mo. 29, 133 S. W. 16; State v. Stevens, 242 Mo. 439, 147 S. W. 97; State v. Sykes, 248 Mo. 708, 154 S. W. 1130; State v. Patrick, 107 Mo. 147, 17 S. W. 666; State v. Gordon, 196 Mo. 185, 95 S. W. 420; State v. Tucker, 232 Mo. 1, 133 S. W. 27; State v. Morgan, 196 Mo. 177, 95 S. W. 402, 7 Ann. Cas. 107; State v. Harris, 199 Mo. 716, 98 S. W. 457.

Another answer is that heretofore given, viz., that the evidence was a part of the res gestæ, and for this reason, and since it fell naturally among the facts, no instruction as to its evidentiary weight or purpose was required to be given. If it had not been a part of the res gestæ, its admission would have been an error in this sort of case, which no instruction could have cured, present proper preservation of the point. What we here say as to lack of exceptions also disposes of all assignments of error bottomed in any wise upon the instructions given, or which the court failed or refused to give.

III. Complaint is made that, over the objections of defendant, counsel for the state was permitted to comment upon the fact that defendant did not testify touching certain mentioned matters while he was on the stand. This assignment is not borne out by the record. An objection, it is true, was made by counsel for defendant to a part of the argument of the state before the jury on this alleged ground, but the trial court then ruled — correctly, as is plain upon the record — that what was said by counsel for the state did not have reference in any wise to any failure of the defendant to cover any fact in his testimony. So we need not now consider whether the cases cited to us by the defendant were or were not correctly overruled in State v. Larkin, 250 Mo. 218, 157 S. W. 600, 46 L. R. A. (N. S.) 13.

IV. Which brings us to a consideration of the one serious point in the case, to wit, whether the court erred in permitting the state, over the objections of defendant, repeatedly to ask defendant questions on cross-examination upon matters not touched upon in, or growing out of, his examination in chief. The record bears out this complaint of defendant fully, and discloses a cross-examination of defendant which, standing alone, is utterly inexcusable.

The examination of defendant in chief consisted of three questions: He was asked his name, his age, and whether he had committed the specific offense charged in the information. Answering, he gave his name as Charles H. Pfeifer, his age at 29 years, and denied he had committed the crime charged. This was all. In cross-examination the state asked him 46 questions outside of his examination in chief, among others, for example: (a) Where he was on the night the assault was made on the prosecuting witness; (b) where he was at 4 o'clock of the morning following that assault; (c) where and when he went to bed; (d) at what places he had been, and with whom, and whom he saw that night; (e) whether he knew...