State v. Preslar
| Decision Date | 12 December 1927 |
| Docket Number | 28298 |
| Citation | 300 S.W. 687,318 Mo. 679 |
| Parties | The State v. F. E. Preslar, Appellant |
| Court | Missouri Supreme Court |
Appeal from Stoddard Circuit Court; Hon. E. M. Dearing Judge.
Affirmed.
James A. Bradley for appellant.
(1) The trial court erred in permitting the State to prove another and distinct crime not connected with the charge under consideration, and not necessary to explain the charge under consideration. State v. White, 223 S.W. 683; State v. Cummings, 213 S.W. 969; State v Spray, 174 Mo. 569; State v. Cox, 263 S.W. 215; State v. Finley, 275 S.W. 41. (2) The learned trial court erred in admitting in evidence the offer of compromise of Mrs. Arpie Preslar, in commenting upon the evidence offered by the State under the guise of rebuttal testimony in failing to instruct upon the purpose of the compromise evidence of the Arpie Preslar offer, as to the purpose of such evidence, as without such instructions, the jury could consider it as evidence of guilt, and in admitting in evidence the admission of Samples of a conspiracy to commit an offense, or confession through fear, and in failing to instruct on the purpose of evidence of defendant's conviction of another offense. State v. Shields, 246 S.W. 932; State v. Smalley, 252 S.W. 443; State v. Craft, 253 S.W. 224; State v. Hart, 237 S.W. 473; State v. Ellis, 242 S.W. 952; State v. Anderson, 240 S.W. 846; State v. Begley, 247 S.W. 169; State v. Cantrell, 234 S.W. 800; R. S. 1919, sec. 4025; State v. Conway, 241 Mo. 271.
North T. Gentry, Attorney-General, and A. B. Lovan, Assistant Attorney-General, for respondent.
(1) The information is in an approved form. State v. Warren, 232 Mo. 188. It was competent to charge the defendant jointly with others. State v. Cooley, 289 S.W. 809. (2) There is no evidence in this record to justify the complaint that the verdict is excessive. The jury had the right, under the law, to impose a sentence of death or life imprisonment. The facts would warrant a much heavier penalty than the twelve years fixed by the jury. In any event, the court will leave the question as to the extent of punishment to the jury. State v. Johnson, 289 S.W. 851. (3) The mother of the defendant testified in his behalf. In order to show her interest the State proved that she went to the prosecutrix's parents and offered to pay them if they would not prosecute the defendant. This testimony went in without objection. The appellant cannot complain on this point, because the evidence was not objected to; and, moreover, it was necessary for appellant to make request of the court for such an instruction or present one of his own for the approval of the court, and if refused, to save an exception. The appellant did not do that in this case. Therefore, there is no merit in the assignment. State v. Parker, 256 S.W. 1043. (4) There was substantial evidence in this case and therefore this court will not overturn the verdict of the jury, notwithstanding the denial made by the defendant and his associates as to the crime. State v. Wade, 268 S.W. 55; State v. Cooper, 271 S.W. 476; State v. Ripey, 229 Mo. 666.
Henwood, C. Higbee and Davis, CC., concur.
An information was filed in the Circuit Court of Dunklin County in which appellant, acting in concert with Jadie P. Preslar and Herbert Samples, was charged with rape. Like informations were filed against Jadie P. Preslar and Herbert Samples, the same concert of action being charged in each case. Upon the application of the defendants, the venue was changed to the Circuit Court of Stoddard County in the three cases. The regular judge of that court was disqualified by defendants' affidavits charging that he was prejudiced against them, and the regular judge of another circuit was called in to try the cases as special judge. The record recites that, by agreement, the three cases were consolidated and tried as one case. The jury found each of the defendants guilty and assessed the punishment of appellant, F. E. Preslar, at imprisonment in the penitentiary for twelve years, that of Jadie P. Preslar at like imprisonment for three years, and that of Herbert Samples at like imprisonment for four years. Each was sentenced accordingly, but, it appearing that Jadie P. Preslar and Herbert Samples were each under the age of eighteen years, the court commuted their respective sentences to confinement in the Reform School for Boys at Boonville until they reach the age of twenty-one, when, if not otherwise released or discharged, they are to be transferred to the penitentiary and there confined for the remaining part of their original sentences, according to the court's order of substituted punishment. Each of the defendants appealed, but the appeals of Jadie P. Preslar and Herbert Samples have been dismissed upon their respective applications. This leaves the case here for review on the appeal of F. E. Preslar only.
Meedie Pewitt, the prosecutrix, testified that, at the time in question, she was between sixteen and seventeen years of age and lived about two miles northeast of the town of Frisbee in Dunklin County. On Sunday evening, February 21, 1926, she was visiting in the home of Mrs. Lora Proffer, near the east limits of Frisbee and along the road extending eastward from the town. "About nine-thirty" that evening, the defendant Herbert Samples came to the Proffer home and reported that her mother was sick and wanted her to come home. Rather reluctantly, she started to her home "afoot" with Samples and, after they had gone about three-fourths of a mile along the road, they were overtaken by the defendants F. E. Preslar and Jadie P. Preslar in a Hudson coach automobile. The car stopped, and Samples said they would get in and ride. She objected and Samples forced her into the front seat of the car with F. E. Preslar, who was driving, and got in the back seat with Jadie P. Preslar. After the car started, she jumped out, ran back towards Frisbee and "hollered" several times. The car stopped, and Samples and Jadie P. Preslar ran back after her. Samples held his hand over her mouth, and Jadie P. Preslar struck her. Samples shouted to the driver, F. E. Preslar, to back up the car, and she was again forced into the car, in the back seat. When she complained and told them they "ought to be ashamed" for telling her a lie to get her out, Samples said, "Shut your mouth or I'll shoot you." She replied, "I would rather be dead than to be done this way." After they drove on eastward some distance, near Marlow Chapel, the car was stopped and Samples told her, in vulgar terms, what they intended to do to her. Then, each of the defendants, in turn, had sexual intercourse with her in the back seat of the car. Each of them, while engaged in this act, held one hand over her mouth and with the other hand held both of her hands. In each instance, the act was accomplished by force and against her will, and without her consent. When they drove back within two miles of Frisbee, she got out of the car and started towards her home. In a very threatening, abusive way, Jadie P. Preslar told her they would kill her if she told anyone what had happened. Over her objection, Samples went part of the way with her and forced her to have sexual intercourse with him again. This he did, by throwing her down and holding her, with one of his hands over her mouth. When he left her, about a quarter of a mile from her home, he said, "You had better tell you have been to church, you know them Preslars is a mean outfit, and I am too." She was bruised about her legs and privates and she complained of being sore for several days. The elastic in her bloomers was broken, her clothing was torn, and there was blood on her bloomers. On the afternoon of the following day, she reported this occurrence to her mother, and then, in company with some of their neighbors, she went to Kennett and related her experience in full to the prosecuting attorney of the county. On cross-examination, she denied that she had previously arranged with Samples to come to the Proffer home for her that night. She also denied that Esther Samples and Melissa James were with her and the defendants in the car. Two physicians testified that they examined her on February 23rd, two days after this occurrence, and that she was bruised about her lower legs and that there was a bruise or abrasion on the inside of her privates. The State's evidence further shows that the defendants were together in Frisbee on the Sunday evening in question, and that they drove east out of Frisbee about nine o'clock, in a Hudson coach. There was no one else with them at that time. They stopped the car and turned off the lights at the edge of town, and Samples got out and started in the direction of the Proffer home. Two witnesses testified that, later on, they heard a girl or woman scream two or three times, along the road about three-fourths of a mile east of Frisbee. They saw a car standing near-by, with the engine running and the lights flashing off and on. One of these witnesses said, "Somebody hollered, 'back up.'" It further appears from the evidence offered by the State that the defendants left Dunklin County and drove into the adjoining State of Arkansas on Tuesday, the second day after this affair, but returned on the evening of the same day, when the Preslars were arrested on this charge. They were caught, with other prisoners, in an attempt to break out of jail at Kennett a few weeks thereafter. Samples evaded the officers for several days by hiding at different places in the surrounding country. On the day of his arrest and later, while confined in jail, he made statements, in which he corroborated the prosecutrix in practically every detail. He said that, on this Sunday evening, he and the Preslars drove to...
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