State v. Robinson
| Decision Date | 21 June 1937 |
| Docket Number | No. 35059.,35059. |
| Citation | 106 S.W.2d 425 |
| Court | Missouri Supreme Court |
| Parties | STATE v. ROBINSON. |
Appeal from Circuit Court, Pettis County; Dimmitt Hoffman, Judge.
Julius "Bo Peep" Robinson was convicted of statutory rape, and he appeals.
Affirmed.
Roy McKittrick, Atty. Gen., and Wm. W. Barnes, Asst. Atty. Gen., for the State.
This is an appeal from a judgment of the circuit court of Pettis county, convicting appellant of statutory rape, and sentencing him to a term of two years in the penitentiary. He has duly appealed, but has filed no brief.
With certain modifications, we adopt respondent's statement of facts, as follows:
The evidence for the State tends to prove that the prosecutrix, Nellie Mulkey, at the time of the alleged offense was not quite fifteen years of age, lived with her mother and stepfather on a farm belonging to a Mr. Thompson near the town of Beaman in Pettis county, Mo. The prosecutrix on the 10th day of January, 1935, attended, with her sister and brothers, a school for colored children, taught in the home of defendant. Appellant (also colored) had been employed to transport the children to and from the school. On the day in question, appellant had prosecutrix, her little sister, and two brothers in the car taking them home, and when they drove through Beaman, the two brothers got out of the car and went into a store, and while they were gone, appellant asked prosecutrix if he could see her at 6 o'clock. To this she replied, "No." The brothers returned to the car, and all proceeded toward home, and arrived there about 5:30. Prosecutrix at once proceeded with her chores and, after the evening meal, prepared her school work for the following school day and retired about 8:30.
Somewhere about 10 o'clock, she arose to go to an outside toilet a short distance from the house, and as she opened the door to go into the toilet, appellant grabbed prosecutrix, threw his hands over her mouth, and said, "Don't you holler," and ran with prosecutrix. The mother of prosecutrix came out of the house shortly and called prosecutrix, and appellant then cautioned her not to answer, and then ran with prosecutrix and carried her to where his car was parked. He drove off with no lights, driving north about two miles, to a woods and brush. Appellant then stopped his car, placed a covering over the radiator of the car, and then began hugging and kissing prosecutrix, and after a while had intercourse with her. Prosecutrix stated that defendant put his private into her private parts.
Prosecutrix then went to sleep and appellant kept waking her up, hugging and kissing her, and after an hour or an hour and a half, had intercourse with her again. They then sat in the car and appellant got out and got the cover or coat off the radiator and stated he did not know whether to take prosecutrix home or keep driving with her. He threatened to put her out, and she remonstrated, and he kept cautioning prosecutrix not to tell what had happened, and then let her out at what is called the "Beaman Corner" about a quarter of a mile from her home, and prosecutrix arrived home about 5 o'clock, January 11, 1935, and reported to her mother and stepfather what had happened. All occurred in Pettis county, Mo.
The mother of prosecutrix testifying corroborated prosecutrix as to the time she left home, and when she returned. That she came in crying, clothing open and was cold, and complained of the treatment received at the hands of appellant. Prosecutrix was taken to and examined by a physician. Some tracks, observed at the place where she and appellant entered the car, were compared with tracks made by appellant at his home, and were the same in size and character, as well as automobile tracks observed there being same as appellant's car tires. That on north about one mile and three-quarters, to the place where prosecutrix pointed out as the place of the assault, there were tracks like those found near the toilet in the yard of prosecutrix, and those made by appellant at his home. This in substance was the State's evidence.
Appellant's defense was an alibi. He also offered evidence tending to show his good reputation for truth, veracity, and morality.
In the absence of a brief on the part of appellant, we look to the motion for new trial for his assignments of error. We find thirteen grounds set forth therein. Of these in their order:
I. The first complains of the action of the court in refusing to give a peremptory instruction to find appellant not guilty at the close of the State's case. The point was waived by failing to stand on the demurrer, and offering evidence in his own behalf. State v. Decker, 326 Mo. 946, 33 S.W.(2d) 958; State v. Meadows, 330 Mo. 1020, 51 S.W.(2d) 1033.
II. The demurrer was renewed at the close of the whole case, and error is predicated on the court's failure to peremptorily instruct, but for limited reasons, namely:
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