State v. Robertson

• Decision Date: 09 November 1959
• Docket Number: No. 1,No. 47352,47352,1
• Citation: 328 S.W.2d 576
• Parties: STATE of Missouri, Respondent, v. Charles ROBERTSON, Appellant
• Court: Missouri Supreme Court

Page 576

328 S.W.2d 576

STATE of Missouri, Respondent, v. Charles ROBERTSON, Appellant.

No. 47352.

Supreme Court of Missouri, Division No. 1.

Nov. 9, 1959.

Raymond A. Bruntrager, St. Louis, for appellant.

John M. Dalton, Atty. Gen., John C. Baumann, Asst. Atty. Gen., for respondent.

HOLLINGSWORTH, Judge.

Defendant has appealed from a sentence of life imprisonment in the penitentiary imposed upon him in accordance with the verdict of a jury finding him guilty of forcible rape and the further finding under the Second Offense Act (prior to its amendment in 1959) that he had theretofore been convicted of a felony, all as charged in the indictment. He has filed no brief and we therefore review the valid assignments of error set forth in the motion for new trial and the essential portions of the record as required by S.Ct. Rules 27.20 and 28.02, 42 V.A.M.S.

The motion sets forth twenty assignments of error in the admission and exclusion of evidence, the refusal of the court to declare a mistrial on grounds of allegedly improper arguments and misconduct of counsel for the State, and closes with a challenge to the sufficiency of the evidence to support the verdict.

With the exception for the testimony of a chemist produced by defendant, all of the evidence was adduced by the State. It warrants a finding of the following facts: On June 20, 1958, the prosecuting witness, Mrs. Virginia Diamond, resided with her husband and their twelve-year-old daughter, Carlon, in a third floor apartment at 4125 Westminster, St. Louis, Missouri. About one o'clock that afternoon, Police Officer Charles Pisoni saw and talked with defendant, whom he knew, at a tavern situate about one and one-half blocks from the apartment in which the Diamond family lived. Pisoni described defendant, a white man, as having a 'sort of suntan complexion--kind of dark,' wearing a light tan hat with a dark band, a cream-colored shirt and brown trousers. Defendant had been drinking but was not drunk.

About two o'clock, p. m., Mrs. Diamond was alone in her apartment, working in her bedroom. At that time a man entered the bedroom in which she was working. He held a weapon, which appeared to be a pair of scissors partially covered with cloth, against her stomach and said, 'You got any money?' She took two ten dollar bills from a purse and gave them to him. He cautioned her to stay in the room and walked out. After about two minutes she peeped out the door and saw him standing there. He came back into the bedroom and demanded that she remove her clothing. She began to scream. He jerked her clothing off her and struck her in the face, breaking her nose and causing it to bleed profusely. She grabbed up her clothing as best she could and put it up in front of her. He accompanied her to the bathroom, permitted her to wash the blood from her face and then brought her back into the bedroom, where he threatened to cut her throat. He pushed her down on the bed and forcibly committed upon her a complete act of sexual intercourse, during the course of which he removed the belt from his trousers and placed it on the bed. Upon completion of the assault, he left the apartment by the rear door, carrying the belt in his hand. Mrs. Diamond ran out the front way to the first floor and thence to the second floor apartment of Mrs. Sartain and related to her what had happened. The police were notified. Mrs. Taff, who lived in an apartment on the second floor, heard the commotion in the Diamond apartment and heard Mrs. Diamond say, 'Oh, please don't.' Shortly thereafter Mrs. Taff saw a man come down the fire escape at the rear of the apartment building. He appeared to be 35 or 40 years of age and wore a tan sport shirt, brown trousers, tan straw hat and had a belt in his hand. Mrs. Taff also saw Mrs. Diamond in the hallway and noticed the bloody condition of her face. About that time, Mrs. Diamond's daughter, Carlon, and a boy named Merrell Austin, with whom she was playing in a yard in the rear of the apartment building, also saw a man come from the building. He spoke to them as he passed.

Upon arrival of Police Officer Kreuger at the apartment, he found Mrs. Diamond hysterical and bleeding from the face. After procuring a description of her assailant and the clothing worn by him, he sent her to the hospital, where she was examined by Dr. Arthur Greenbank. The doctor found her nose broken; her female organs showed an abrasion; and a laboratory examination of smears taken from them revealed the presence of spermatozoa.

During the period of time her assailant was in the bedroom, Mrs. Diamond observed his features and clothing. He was a large, heavily built, broad shouldered man, about 5 feet, 10 inches, in height, of a tannish-brown complexion, had high cheek bones, a small sore on his lip, a cut on his left hand, and had been drinking. He wore a light tan hat with a dark band, a creamcolored shirt, brown trousers, and a tan belt with 'white work' woven into it.

Following the arrest of defendant about 7:30 that evening, Mrs. Diamond, her daughter, Carlon, Merrell Austin and Mrs. Taff viewed defendant in a police 'line-up'. Mrs. Diamond there identified him as the man who had assaulted her. Mrs. Taff identified him as the man she had seen come down the rear fire escape past her apartment. Merrell Austin and Carlon also identified him as the man they saw leaving the apartment building and who had spoken to them as he passed. These witnesses again identified and pointed him out at the trial and identified the clothing which he had worn at the time of his arrest as being the same or similar to that worn by him when he was at the apartment building.

Records of the Circuit Court of the City of St. Louis and the City Workhouse of said City, placed in evidence by the State, showed the conviction and sentence of defendant to imprisonment in the City Workhouse for a term of six months for the felonious larceny of a motor vehicle, his imprisonment in accordance therewith and his discharge from imprisonment upon compliance with the sentence. Records of the Superior Court of the County of Los Angeles, State of California, and the Department of Corrections of that State, at Sacramento, placed in evidence by the State, showed the conviction by jury trial and sentence of defendant in February, 1940, to imprisonment in the State Prison at San Quentin (under the alias of John Rymar) for the crime of robbery in the first degree and his discharge therefrom in 1956 upon compliance with his sentence.

The evidence adduced in behalf of defendant consisted of the testimony of William Secunda, a chemist, employed in the police laboratory in St. Louis. He testified that he examined the person of and clothing worn by defendant and found no trace of seminal fluid on them and no fibers similar to the material of which the bedspread from the bed upon which the rape occurred was made.

The evidence was clearly sufficient to support the verdict.

This brings us to consideration of the remaining assignments. Eight of these assignments allege error on the part of the court in permitting the State's attorney to read to the jury certain questions and answers contained in the depositions of Mrs. Diamond and Mrs. Taff Taken by defendant prior to the trial.

During the cross-examination of Mrs. Diamond she was repetitiously interrogated with reference to the details of the assault made upon her, the clothing worn by defendant, the time consumed during the assault, the precise location of the cut she saw on defendant's hand, statements made by her relative to a 1953 picture of her alleged assailant shown to her by the police, the sore she saw on his lip, statements made by her at the police station, et cetera. Mrs. Taff was also repetitiously cross-examined relative to statements made by her at the police station concerning the description of the man she saw coming down the fire escape, the length of time she observed him, et cetera. In the cross-examination of these witnesses, counsel for defendant read to them isolated questions propounded to and answers made by them in their respective depositions in connection with the foregoing phases of their testimony. In that state of the record, the trial court, over objection of defendant, permitted the State to read to the jury, in rebuttal, additional portions of their depositions.

Assignments 1, 2 and 3 assert prejudicial error in permitting, in rebuttal, the reading of portions of the deposition of Mrs. Diamond relating to (1) the description of her assailant, (2) the details of the crime charged, and (3) the length of the time of the crime, on grounds that her testimony at the trial as to those matters had not been impeached, and that her statements read from the deposition were, therefore, self-serving, constituted hearsay and an effort to bolster her testimony. Assignment 7, in substance, asserts the same grounds with respect to the admission of the portion of the deposition of Mrs. Taff relating to the description of the man she saw on the fire escape and the clothing worn by him.

Assignment 4 asserts prejudicial error in permitting, in rebuttal, the reading of (1) a portion of Mrs. Diamond's deposition touching upon the location of the cut on her assailant's hand and (2) a portion thereof to the effect that she had told the police that the cut on his hand was between the index finger and thumb, which was contrary to her testimony at the trial that the cut was between his middle fingers, on grounds that such statements tended to impeach the State's own witness.

Assignments 5 and 6 assert prejudicial error in permitting the reading of the portion of Mrs. Diamond's deposition relative to (1) her statements that she had identified defendant at the police station and that she had there described the marks he had on his face, (2) her statements at the police station that defendant was the man who raped her and that others could hear her when she made the...