State v. Pyle

• Decision Date: 20 December 1938
• Docket Number: 36157
• Parties: The State v. Carter Pyle, Appellant
• Court: Missouri Supreme Court

123 S.W.2d 166

343 Mo. 876

The State v. Carter Pyle, Appellant

No. 36157

Supreme Court of Missouri

December 20, 1938

Appeal from Jasper Circuit Court; Hon. Ray E. Watson Judge.

Affirmed.

Harry Seneker and Dale Tourtelot for appellant.

(1) The evidence is wholly insufficient to support the verdict and is improbable and unbelievable. Furthermore, even if there were any substantial evidence to support the verdict, the record discloses such passion and prejudice against defendant in the trial as to amount to a denial to him of a fair and impartial trial. For these reasons, under the following authorities this case must be reversed: State v. Remley, 237 S.W. 491; State v. Prim, 98 Mo. 372; State v Harrison, 263 Mo. 655; State v. Tevis, 234 Mo. 284; State v. Goodale, 210 Mo. 290; State v. Brown, 209 Mo. 413; State v. Davis, 190 S.W. 297; State v. Donnington, 246 Mo. 355; State v. Wellman, 253 Mo. 318; State v. Lewkovitz, 265 Mo. 613; State v. Harmon, 296 S.W. 400; State v. Tunnell, 296 S.W. 427; State v. Guerringer, 265 S.W. 419; State v. Gergdorf, 53 Mo. 65; State v. Connor, 252 S.W. 722; State v. Stanfield, 1 S.W.2d 836; State v. Jones, 306 Mo. 448; State v. Prendible, 165 Mo. 339; State v. Katz, 266 Mo. 504; State v. Bobbst, 131 Mo. 338; State v. Baldwin, 297 S.W. 19; State v. Mitchell, 204 S. W., 801; State v. Burgess, 193 S.W. 821; State v. Richardson, 46 S.W.2d 576; State v. Lambert, 262 S.W. 58; State v. Duckworth, 297 S.W. 160; State v. Irvine, 72 S.W.2d 96, 93 A. L. R. 232; State v. Spivey, 191 Mo. 87; State v. Shipman, 93 Mo. 147; State v. Creighton, 52 S.W.2d 556; State v. Myers, 14 S.W.2d 447; State v. Caudle, 174 Mo. 388. (2) The court erred in overruling defendant's application for continuance for the reasons stated in said application and in refusing to allow the defendant to prove the facts set forth in said application as grounds therefor. R. S. 1919, sec. 3996; 16 C. J. 484, sec. 876; State v. Wade, 307 Mo. 290; State v. Guerringer, 265 Mo. 420; State v. Harmon, 296 S.W. 400; State v. Davis, 190 S.W. 297; State v. Wellman, 253 Mo. 319; State v. Richardson, 46 S.W.2d 576. (3) The argument of the prosecuting attorney to the jury as set out in Bill of Exceptions pages 432 to 436a, inclusive, was improper, illegal and prejudicial and misstated and misconstrued the evidence and the rules of the court thereon adverse to defendant overruling defendant's objection, to all of which defendant saved exceptions, which constitute reversible error. State v. Babbst, 131 Mo. 339; State v. Schneider, 259 Mo. 354; State v. Prendible, 165 Mo. 354; State v. Fisher, 124 Mo. 465; State v. Burnes, 237 S.W. 506; State v. Wellman, 253 Mo. 319; State v. Harmon, 296 S.W. 400; State v. Clancy, 225 Mo. 654; State v. Thompson, 238 S.W. 115; State v. Dixon, 253 S.W. 746; State v. Connor, 252 S.W. 722; State v. Baldwin, 297 S.W. 19; State v. Kyle, 259 Mo. 412. (4) The argument of the assistant prosecuting attorney in which he expressed his solemn opinion that defendant was guilty, was most prejudicial to defendant under the circumstances and, under true decisions of this court, constituted reversible error. State v. Hess, 240 Mo. 160; State v. Webb, 254 Mo. 435; State v. Reppley, 278 Mo. 342; State v. Phillips, 233 Mo. 306; 75 A. L. R. 59n; 78 A. L. R. 1472n. (5) The court erred in permitting members of a hostile audience to remain in the courtroom and to crowd around the jury box. State v. Guerringer, 265 Mo. 420; State v. Wellman, 253 Mo. 319; State v. Davis, 190 S.W. 298; State v. Harmon, 296 S.W. 396; State v. Connor, 252 S.W. 722. (6) The court erred in refusing to grant the defendant a change of venue. R. S. 1929, sec. 3648; State v. Duckworth, 297 S.W. 150; State v. Irvine, 72 S.W.2d 96, 93 A. L. R. 232; State v. Spivey, 191 Mo. 87; State v. Shipman, 93 Mo. 147; State v. Creighton, 52 S.W.2d 556.

Roy McKittrick, Attorney General, and W. J. Burke, Assistant Attorney General, for respondent.

(1) Appellant's assignment of error No. 7, the court did not err in failing to instruct the jury as to the requirements of or necessity for some corroboration to the story testified to by the prosecuting witness, Alta Murdock. State v. Hudson, 289 S.W. 920; State v. Wilson, 12 S.W.2d 445, 321 Mo. 564. (2) The court did not err in keeping the jury up until midnight on the fourth and last day of trial and until after two o'clock a.m. Friday morning, the case having gone to the jury late Thursday night. State v. Lash, 225 Mo. 556, 125 S.W. 559; State v. Rose, 142 Mo. 418, 44 S.W. 428; State v. Tucker, 232 Mo. 21, 133 S.W. 37, 85 A. L. R. 1422n; Russell v. State, 66 Neb. 497, 92 N.W. 751. (3) The court did not err in refusing motion of the defendant to issue an attachment for Herbert Fields and C. C. Reynolds, witnesses for the defendant. The two witnesses were summoned by the court and could not be found. State v. Mahan, 267 S.W. 868; State v. Sassaman, 114 S.W. 590, 214 Mo. 737; State v. Naylor, 40 S.W.2d 1079, 328 Mo. 335. (4) The court did not err in refusing to grant the defendant a continuance on the application made by Harry Seneker, defense attorney. State v. Jackson, 102 S.W.2d 616; State v. Messino, 30 S.W.2d 759, 325 Mo. 743; State v. Lonon, 56 S.W.2d 381, 331 Mo. 591; State v. McKeever, 101 S.W.2d 26. (5) The court did not err in refusing to allow the defense attorney, Harry Seneker, to withdraw from the trial of the case or after forcing the said Harry Seneker to go to trial in the case in appointing Dale Tourtelot of Joplin, Missouri, to assist Harry Seneker and it was immaterial whether or not the two attorneys had ever tried a rape case and they were familiar with the facts in the case. State v. Eggleston, 27 S.W.2d 729; Sec. 3614, R. S. 1929. (6) The court did not err in denying defendant's application for a change of venue for the reason that the prosecuting attorney was not given sufficient notice. State v. Drewer, 116 S.W.2d 37.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

Carter Pyle, of negro blood, appeals from a judgment imposing a sentence of ninety-nine years' imprisonment for forcibly ravishing (see Sec. 3999, R. S. 1929, Mo. Stat. Ann., p. 2801) a white girl of the age of twenty years.

Defendant questions the sufficiency of the evidence, contending that certain isolated facts (some of which were not disputed by defendant) established by the State's case are unworthy of belief. As will appear hereinafter, there was substantial testimony supporting the verdict and it is unnecessary to develop defendant's contention. The act of intercourse stands admitted. Defendant testified it was with the consent of the prosecutrix. The State's case was that it was accomplished by means of force. Prosecutrix's testimony was to the effect she had attended a sick friend and departed for her home about 1:30 A. M. on the morning of May 15, 1937; that as she proceeded home an automobile drew up and the driver asked permission to take her home; that she refused, kept on walking and the automobile continued along the curb; that the automobile stopped, a person, whom she recognized to be a negro, leaped out and knocked her down; that she fought, hallooed, and begged him to let her go; that he dragged her behind some shrubbery; that she was hit and choked; that when she tried to tell him he was killing her, he would choke her harder; that "he choked me unconscious;" that when she regained consciousness she was in the automobile; that thereafter the automobile stopped on a deserted road; that defendant twisted her arm and otherwise abused her; that she was exhausted, frightened and nervous; that defendant said he would kill her if she told of her experience; that he put something down the front of her dress and said there is $ 4, that ought to pay the damages and make you keep your mouth shut; that she departed without her shoes or purse; that she walked home in her stockings; and that she immediately made complaint and took the money out of her dress and threw it on the dresser -- it consisted of three one dollar bills. Prosecutrix also testified to bruised places on her arms, legs and body. Her testimony was corroborated. Witnesses testified, with respect to her condition that night, that, among other things, one of prosecutrix's eyes was blood red; that there was a large bruise on her cheek, a bruise on her forehead and finger and thumb marks on her throat; and also that prosecutrix's shoes and purse were found in defendant's automobile at the time of his arrest. Defendant's argument is one for the triers of the fact and their finding against defendant is amply sustained by the evidence. [State v. Wilkins (Mo.), 100 S.W.2d 889(1); State v. Catron, 317 Mo. 894, 899(I), 296 S.W. 141, 143(3, 4).]

Mr Seneker, defendant's counsel, on the morning of the trial date, filed an application for a continuance based on the ground counsel had not had sufficient time to properly prepare for trial. This was overruled. Defendant was a resident of Carthage. The crime was committed and defendant was arrested on May 15, 1937, in Jasper County. Prosecutrix resided in Carthage. We understand from the record that defendant was confined in the jail of an adjoining county and approximately twenty minutes distant by automobile from the place of trial; that parties were privileged and permitted to interview defendant at said jail; that defendant was in communication with relatives and at least one attorney, who, however, did not appear, conferred with defendant and made some investigation on his behalf before arraignment; that defendant was returned to Jasper County on June 6th and Mr. Seneker conferred with defendant on the 7th; and that on June 7th the case was set for trial on June 14th. The application might have been sustained. However,...