State v. Richardson

• Decision Date: 28 July 1942
• Docket Number: 37886
• Parties: The State v. Ernest C. Richardson, Appellant
• Court: Missouri Supreme Court

163 S.W.2d 956

349 Mo. 1103

The State v. Ernest C. Richardson, Appellant

No. 37886

Supreme Court of Missouri

July 28, 1942

Appeal from Circuit Court of City of St. Louis; Hon. Ernest F Oakley, Judge.

Reversed and remanded.

Roy McKittrick, Attorney General, and Arthur O'Keefe, Assistant Attorney General, for respondent.

(1) The indictment is in proper form. Sec. 4393, R. S. 1939; State v. Long, 108 S.W.2d 388, 341 Mo. 766; State v. Borchert, 312 Mo. 447, 279 S.W. 72. (2) The verdict in this cause is proper. State v. Long, 108 S.W.2d 388, 341 Mo. 766; Sec. 4393, R. S. 1939; State v McBride, 231 S.W. 592; State v. Taylor, 168 S.W. 1191, 261 Mo. 210. (3) The evidence in this cause is sufficient. State v. Lawson, 136 S.W.2d 992; State v. King, 119 S.W.2d 277, 342 Mo. 975; State v. Mitchell, 86 S.W.2d 185. (4) Period of time elapsing before complaint not an element in statutory rape. State v. Shelby, 62 S.W.2d 721, 333 Mo. 610. (5) The weeping of the prosecuting witness was not reversible error. Murphy v. Wolferman, 148 S.W.2d 481; State v Barrington, 95 S.W. 235, 198 Mo. 23; State v. Connor, 252 S.W. 713; 131 A. L. R. 323; 57 A. L. R. 62. (6) Questions not answered or answers which are stricken are not error. State v. Scott, 58 S.W.2d 275, 332 Mo. 255; State v. Mulconry, 270 S.W. 375; State v. Butterfield, 75 Mo. 297; State v. Smith, 136 S.W.2d 842; 24 C. J. S., p. 910. (7) Evidence of complaint by prosecutrix is admissible. State v. Cardello, 130 S.W.2d 498; State v. Robinson, 106 S.W.2d 425; Mo. Dig., Rape 48 (1). (8) Improper actions before alleged rape are admissible. 52 C. J., p. 1070; State v. Baker, 318 Mo. 542, 300 S.W. 699; State v. King, 119 S.W.2d 277, 342 Mo. 975. (9) Evidence of silence of defendant when accused of crime admissible. State v. Bowdry, 145 S.W.2d 127. (10) Testimony that appellant attempted to shove prosecutrix under a moving car was not error. 23 C. J. S., 61; State v. Merchant, 119 S.W.2d 303; State v. Rector, 40 S.W.2d 639, 328 Mo. 669. (11) Cross-examination of appellant was proper. Sec. 4081, R. S. 1939; State v. Bagley, 96 S.W.2d 331, 339 Mo. 215; State v. Gilmore, 81 S.W.2d 431, 336 Mo. 784. (12) The argument of the Assistant Circuit Attorney was not reversible error. State v. Dodson, 29 S.W.2d 60; State v. Barker, 18 S.W.2d 19, 322 Mo. 1173; Mo. Dig. Crim. Law, 1171 (1). (13) The designation of the appellant as a "sexual beast" was not error. State v. Dixon, 253 S.W. 746; State v. Rasco, 144 S.W. 449, 239 Mo. 535; State v. Vallo, 33 S.W.2d 899; State v. Beaghler, 18 S.W.2d 423; State v. Lucas, 292 S.W. 714, 316 Mo. 904; State v. Allen, 74 S.W. 839, 174 Mo. 689; State v. Summers, 45 S.W. 254, 143 Mo. 220; State v. Topalovacki, 213 S.W. 104; State v. Wilkins, 100 S.W.2d 889; State v. Dixon, 253 S.W. 746; State v. Bobbst, 32 S.W. 1149, 131 Mo. 328; State v. Fischer, 27 S.W. 1109, 124 Mo. 460; State v. Young, 12 S.W. 879, 99 Mo. 66. (14) General instructions upon reasonable doubt are sufficient. State v. Westmoreland, 126 S.W.2d 202; State v. Buckner, 72 S.W.2d 73, 335 Mo. 229; Mo. Dig. Crim. Law, 806 (3); State v. Kelly, 73 Mo. 608. (15) Repetitious instructions are not reversible error. State v. Tucker, 62 S.W.2d 453, 333 Mo. 171; State v. Simmons, 58 S.W.2d 302, 332 Mo. 247; State v. Murray, 193 S.W. 830; Mo. Dig. Crim. Law, 806 (1). (16) Instructions covered by other instructions are properly refused. State v. Wilkins, 100 S.W.2d 889; State v. Arenz, 100 S.W.2d 264, 340 Mo. 160; State v. Day, 95 S.W.2d 1183, 339 Mo. 74; State v. Koch, 16 S.W.2d 205, 322 Mo. 106. (17) Refusal of appellant's Instruction B proper. State v. Williams, 87 S.W.2d 175, 337 Mo. 884; State v. Menz, 106 S.W.2d 440; State v. Nibarger, 339 Mo. 937, 98 S.W.2d 625. (18) Appellant's Instruction D concerning relation of prosecutrix with appellant after alleged rape, properly refused. State v. Shelby, supra.

OPINION

Ellison, J.

The appellant was convicted in the circuit court of the City of St. Louis of raping his fourteen-year-old daughter in violation of Sec. 4393, R. S. 1939, Sec. 3999, Mo. Stat. Ann., p. 2801, and his punishment assessed by the jury at imprisonment in the penitentiary for 30 years. The State waived the death penalty and the jury were informed of that fact in an instruction. He has filed no brief in this court. There were 29 assignments of error in his motion for new trial. First contending there was no substantial evidence to support the verdict, seven of the remaining assignments complain of the conduct of the fourteen-year-old prosecutrix in weeping while on the witness stand, and another of limitation of his counsel's voir dire examination of the jury panel. The other assignments are directed to the reception and exclusion of testimony and refusal to strike out the same and admonish the witness; improper argument; and the giving and refusal of instructions. The case was tried below two years ago and submitted here January 6, 1942.

We shall not set out the revolting details of the evidence. The appellant was 44 years old at the time of the commission of the alleged rape upon which the indictment is based and his wife was 35. She had been a cripple from birth. They had been married for 15 years and had three children: the prosecutrix, 14 years old, and two sons, one 10 and the other 6 years old. When working at all appellant was employed by the W. P. A. He had been convicted of larceny, when a child he said, and in later life of carrying concealed weapons. The family had lived in comparative squalor for the last 12 years in St. Louis. The father, mother and daughter appear to be rather subnormal mentally, but exhibited a certain low order of cunning in fencing with counsel on examination. The direct, cross, and two redirect and cross-examinations of the prosecutrix cover 128 pages of the printed record. The cross-examination of the mother covers 52 pages. Without seeing the witnesses, it is a difficult case for an appellate court on the facts.

The prosecutrix' story was that when she was about seven years old her father began to violate her person and after about a year had sexual intercourse with her. This occurred mostly in the kitchen early in the morning. He would get up early and have the daughter arise at the same time to prepare his breakfast, the mother being unable to do so because of her infirmities. The appellant would make a pallet on the kitchen floor where the sexual acts occurred. On cross-examination he admitted that his overcoat, a blanket or comfort was spread on the floor two or three times and that she lay on it; but asserted this was because the child was cold until the kitchen had been warmed by the stove. He absolutely denied any improper acts. According to the prosecutrix' testimony they continued weekly through the seven years; and appellant threatened her with physical violence if she disclosed them. During these years she attended the public school and associated with other children. The mother testified the appellant's display of affection for the prosecutrix in fervor of speech and action was beyond that which a father would ordinarily show for a daughter; and that he kept track of her menstrual periods by examination of her laundry. The mother's suspicion was aroused but she said nothing.

In the latter part of April, 1939, things came to a crisis. Appellant had whipped the daughter from time to time theretofore with his leather belt, but on the occasion last referred to he whipped her violently, tried to choke her, and attempted to push her in front of a moving automobile. This testimony is not very clear, but it seems the mother was at church at the time and the prosecutrix wanted to go there. The mother testified appellant came to the church and raised a disturbance. At any rate the police were later called. Appellant was arrested on a charge of incest, at the home of his mother. The prosecutrix told her mother about her relations with appellant.

The mother testified that before appellant was arrested she told him of the prosecutrix' confession and "he didn't deny it." Appellant was held in custody for a month or two pending a preliminary hearing. On a certain occasion during the intervening time the prosecutrix and her mother went to the home of her grandmother, appellant's mother, and while there the prosecutrix wrote a note to Mr. Hough, appellant's attorney, retracting the charge. The mother also wrote and mailed a note to Mr. Hough, explaining the prosecutrix at breakfast had broken down and wept, saying her conscience hurt her because she had lied against her father. The mother, the prosecutrix and her aunt, Mrs. Flora Richardson, wife of appellant's brother Arthur, went to Mr. Hough's office, and the prosecutrix there delivered to him her written retraction. At the preliminary hearing Mr. Hough produced it and the Assistant Circuit Attorney dismissed the proceeding. The prosecutrix was placed in the House of Detention and remained there about eight days. Then she was transferred to an institution called in the record the "Epworth School," at which she resided until sometime in the fall, separated from her parents except that they could call on her. Then she repudiated the retraction and the facts were submitted to a grand jury, which returned on December 1, 1939, an indictment on which this prosecution is based, charging statutory rape on or about April 26, 1939.

There is much testimony pro and con on how the note of retraction came to be written and why it was repudiated. The prosecutrix testified it was coerced by her aunt Flora, who lived just across the hall from the grandmother and helped do the latter's housework. There is no dispute about the fact that the note emanated from that environment, either at the apartment of the grandmother or that of the...