State v. Rusow, 35096.

• Decision Date: 21 June 1937
• Docket Number: No. 35096.,35096.
• Citation: 106 S.W.2d 429
• Parties: STATE v. RUSOW.
• Court: Missouri Supreme Court

106 S.W.2d 429

STATE v. RUSOW.

No. 35096.

Supreme Court of Missouri, Division No. 2.

June 21, 1937.

Appeal from Circuit Court, Buchanan County, Division No. 3; Ferd J. Frankenhoff, Judge.

Orvil Rusow was convicted of assault with intent to rape, and he appeals.

Judgment affirmed.

Roy McKittrick, Atty. Gen., and Wm. W. Barnes and Olliver W. Nolen, Asst. Attys. Gen., for the State.

WESTHUES, Commissioner.

Appellant was charged by an information filed in the circuit court of Buchanan county, Mo., with the crime of assault with intent to rape one Margaret Williams, ten years of age. Appellant was convicted and received a sentence of two years' imprisonment in the penitentiary. He appealed.

Appellant filed no brief. His motion for new trial preserved only two points for our review: First, the sufficiency of the evidence to sustain a conviction; second, that the trial court erred in permitting two exhibits in the case to be sent to the jury room at the request of the jurors.

Two witnesses, who knew the appellant and Margaret Williams, testified that they saw these two persons together near the river and the Grand Island bridge, on the evening of July 14, 1935. They testified that the conduct of appellant and the child aroused their suspicion. The witnesses were about three hundred yards from the scene of the alleged crime. After their suspicion had been aroused, they used binoculars so that they were better able to observe appellant and the child. They testified in detail with reference to the conduct and actions of appellant and Margaret Williams. Without relating the sordid details, we deem it sufficient to state that the evidence of these two witnesses tended to prove all the elements necessary to constitute the offense charged in the information. We also learn from this evidence that the child consented to the actions of appellant. Her mother testified that she was ten years of age. Consent, therefore, was immaterial. See State v. Conrad, 322 Mo. 246, 14 S.W.(2d) 608. Margaret Williams was placed upon the witness stand. She was either too frightened to testify to the principal facts, or was an unwilling witness. The only fact to which she testified was that she and appellant were at the place where the offense was alleged to have been committed, on the date in question.

After the jury retired they requested that the two pairs of binoculars, which had been introduced in evidence, be sent to the jury room. Appellant objected, but the trial court overruled the objection. The exhibits were introduced in evidence without objection. The witnesses testified with reference to how they were used. The trial court could have legally permitted the jury to inspect the exhibits during the trial. In State v. Shawley, 334 Mo. 352, 67 S.W.(2d) 74, loc. cit. 87 (28), when discussing the question of permitting juries to have exhibits in the case, this court said: "Section 3734, R.S.1929 (Mo. St.Ann. § 3734, p. 3272), provides that `the court may grant a new trial for the following causes, or any of them: First, when the jury has received any evidence, papers or documents, not authorized by the court. * * *' It will be observed the statute says the court may grant a new trial, not that it shall do so regardless of whether the defendant has or has not been...