State v. Schaffer
| Decision Date | 12 February 1962 |
| Docket Number | No. 48680,No. 2,48680,2 |
| Citation | 354 S.W.2d 829 |
| Parties | STATE of Missouri, Respondent, v. George SCHAFFER, Appellant |
| Court | Missouri Supreme Court |
Allen J. Roth, St. Louis, for appellant.
Thomas F. Eagleton, Atty. Gen., George D. Chopin, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
George Schaffer was found guilty by a jury of the offense of rape, and he appeals from the judgment sentencing him to imprisonment for a term of ninety-nine years as fixed by the trial judge under the Habitual Criminal Act (Sec. 556.280, RSMo and V.A.M.S.). He has not filed a brief, but his motion for a new trial (to which, in the absence of a brief on his part, we look for the assignments of error preserved for appellate review) raises, or attempts to raise, only three questions, viz.: (1) The sufficiency of the evidence to make a submissible case; (2) the admissibility of 'State's Exhibit No. 4,' a photograph of prosecutrix taken in color by a police photographer, and (3) the propriety of permitting the trial to proceed over defendant's objections to the demeanor of the prosecutrix at certain times while testifying.
The facts are bizarre and revolting, but enough of them must be stated to determine what seems to be the principal point in the case, and that is whether the court should have directed a verdict of not guilty as moved by defendant at the close of all the evidence.
The prosecutrix, who will sometimes be referred to as Patricia, is a mentally and physically retarded, 18-year-old, white girl. She lived with her parents and six or seven brothers and sisters in the 2600 block of Cass Avenue, a predominantly colored neighborhood in the City of St. Louis. The defendant lived about two blocks away--at 1521 North Jefferson. He is a Negro, formerly a boxer, having participated in more than three hundred fights and, as nearly as we are able to ascertain from the record, probably about 48 years of age.
On Thursday, April 21, 1960, about 3 or 3:30 p. m., Patricia's mother sent her to a neighborhood cleaning establishment (located just across the street from defendant's home) to pick up her father's pants. The pants were not ready, and she 'started back home.' Traveling the usual and normal route homeward would cause her to pass in front of 1521 North Jefferson. While walking along the sidewalk adjacent to those premises, she was grabbed from behind by defendant, and dragged into his house where, to use her language, she 'got socked in the stomach and almost choked.'
There is no dispute as to the following particular facts (both prosecutrix and defendant having testified to them): That prosecutrix remained in defendant's house or living quarters (comprised of four rooms--'all in line, one room after the other') until about 8 or 8:30 o'clock the next morning; that defendant 'shaved' the pubic hair from the region of her groin (actually he used hair clippers with which he did barbering), and that they spent some part of the night in bed together, both in the nude.
Turning now to the state's proof in relation to other aspects of the offense, and what transpired after prosecutrix was dragged into the house, it is sufficient to say, without descending into particularities, that the state's evidence was such as to have warranted the jury in finding the facts to be substantially these: That defendant struck prosecutrix in the stomach and mouth with great force, choked her, threw her on a bed, and tore her clothing off; that he 'knocked her out,' and for some indefinite period she did not know anything; that she woke up during the night and tried to get out the back door, but was unsuccessful because intercepted by defendant, who had wakened, and he caused her to get back in the bed with him--both were naked; that during the night defendant told her if she made 'one sound' he would knock her brains out with a hammer; that she woke up after day-light and defendant permitted her to go about 8 a. m., after first warning her that he would kill her if she told anybody.
Prosecutrix was apparently unable to tell the jury from her own knowledge whether defendant had sexual intercourse with her, as will appear from these excerpts from her direct examination:
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When permitted to leave about 8 a. m., Partricia went directly to her home (two blocks away), arriving there in a nervous and frightened condition with bruises and scratches on her neck and body. She was taken at once to City Hospital to undergo medical examination, and there two vaginal smears for male sperm were made--one from the vulva, and the second from the deepest part of the vagina. The bacteriologist testified that the latter was positive--'Spermatozoa present.' The examining physician at the hospital testified that at the time of the examination Patricia was emotionally upset; there were scratches on her neck and left arm, and she complained of pain in her chest, and she had an abrasion of her vulva. He further testified that 'trace of spermatozoa' will remain in the female organ from twenty-four hours up to about forty-eight after an act of intercourse; and that, assuming the vaginal smear was positive (as subsequently testified to be the bacteriologist), it was his medical opinion that there had been penetration in this instance within the 24-48 hour period. Additionally, laboratory tests showed seminal fluid to be present on her undergarments.
On her way home from the hospital, Patricia pointed out to the police the premises where the assault had occurred, and about 11:15 that night the police there arrested defendant. When he opened the door, he said to the two policemen (both of whom he knew), When they stepped into the house to question him, 'he stated he did have intercourse with the girl--that 'he had her,' and pointed out the room wherein it had occurred.'
The state proved defendant had been priorly convicted of murder in the second degree, and sentenced to a term of ten years in the Missouri Penitentiary, from which he was discharged November 5, 1956, upon lawful compliance with said sentence. On cross-examination he admitted numerous other convictions, i. e., for fighting, carrying concealed weapons, common assault, assault with a deady weapon (brass knuckles) in Chicago in 1943, and possible others about which he was not sure.
Defendant's version, in brief (and in addition to what has already been related as having been admitted by him), was this: That Patricia's presence in his house was entirely voluntary on her part; that she entered by the back door at 5:30 or 6 o'clock, ostensibly to see his former housekeeper, Gert, and to borrow money from the latter with which to get clothes out of a cleaning shop; that he informed prosecutrix that Gert was not there, but nevertheless she did not want to go home, and he did not ask her to go because she was afraid her mother was going to whip her--this for the reason that her clothes were torn and she was 'scratched and beat up'; that during the 15 or more hours she was in his home, she was 'free to go' (although the doors were locked from the inside); that he slept most of the 15-hour period 'after I finished drinking.' This was the extent of his direct examination, it having been concluded without any denial of his guilt, but the following was developed on crossexamination:
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