State v. Sechrist

• Decision Date: 15 March 1910
• Citation: 126 S.W. 400,226 Mo. 574
• Parties: STATE v. SECHRIST.
• Court: Missouri Supreme Court

126 S.W. 400

226 Mo. 574

STATE v. SECHRIST.

Supreme Court of Missouri, Division No. 2.

March 15, 1910.

1. JURY (§ 103) — COMPETENCY OF JURORS.

Under Rev. St. 1899, § 2616 (Ann. St. 1906, p. 1550), providing that if a proposed juror's opinion is formed on rumor or newspaper reports, and is not such as to prejudice his mind, he may be sworn, a juror who had formed an opinion from newspaper accounts, but who felt competent that he could render a fair and impartial verdict and who stated that he had no prejudice against defendant, was competent.

2. JURY (§ 101) — COMPETENCY OF JURORS.

In a trial for rape, a juror who came into the courtroom on the first trial of defendant while defendant's counsel was cross-examining prosecuting witness, but formed no opinion from the part of her testimony that he heard, was not disqualified.

3. CRIMINAL LAW (§ 369) — EVIDENCE — OTHER OFFENSES.

In a trial for rape, evidence of prior acts of intercourse committed by defendant was admissible.

4. CRIMINAL LAW (§ 1168) — APPEAL — HARMLESS ERROR — ELECTION BETWEEN OFFENSES.

In a trial for rape, charged to have been committed April 19th, where the court instructed that the jury could not convict on any acts of intercourse committed prior to such date, but that evidence of such acts, if any, could be considered only as evidence tending to prove or disprove the act on which conviction was sought, it was not reversible error to refuse to require the state to elect on which act of intercourse it would seek a conviction.

5. CRIMINAL LAW (§ 723) — TRIAL — REMARKS OF COUNSEL.

In a trial for rape, a remark of the state's attorney that "any man who will commit a rape on a girl such as this is a coward" was not error.

6. CRIMINAL LAW (§ 1159) — APPEAL — REVERSAL — GROUNDS.

To justify a reversal on the weakness of the testimony, the verdict must be irreconcilable with human experience.

7. RAPE (§ 51) — SUFFICIENCY OF EVIDENCE.

Evidence held sufficient to sustain a conviction for rape.

Appeal from Criminal Court, Greene County; A. W. Lincoln, Judge, and John T. Moore, Special Judge.

Thomas Sechrist was convicted of rape, and he appeals. Affirmed.

E. W. Major, Atty. Gen., and C. G. Revelle, Asst. Atty. Gen., for the State.

GANTT, P. J.

This is a prosecution for rape, commenced by the prosecuting attorney of Greene county, by information, charging defendant with rape of his daughter, a girl about 16 years old, in Greene county, on April 19, 1907. Defendant was arraigned and pleaded not guilty, and was convicted and sentenced to the penitentiary for seven years. His first trial resulted in a mistrial, owing to a disagreement of the jury. Prior to the second trial, Judge Lincoln, the regular judge of the criminal court, voluntarily disqualified himself, and called Judge B. J. Casteel of the Buchanan county criminal court, who appeared at the time named to preside in the case, but defendant filed an affidavit of prejudice on the part of Judge Casteel, duly supported by compurgators, and thereupon Judge F. C. Johnston of the Twenty-Fourth circuit was duly requested to try the cause, and it was set down for August 26, 1907. Upon application of the defendant, the cause was continued to December 2, 1907. On the last-mentioned date, Judge Johnston was unable to preside on account of business of his own circuit, and thereupon Judge Lincoln called in Judge John T. Moore, of the Thirty-First circuit, and he appeared and assumed jurisdiction on the day fixed, to wit, December 3, 1907. Defendant at the time objected to the order calling in Judge Moore, on the ground that Judge Lincoln had no authority to make the order, and duly saved his exception. After the panel of 40 had been secured, defendant filed his motion to quash the same, because Judge Moore had no authority to make the order for said venire, because he had not been lawfully selected to try said cause, which motion was overruled, and defendant excepted.

The evidence tended to show that defendant was a widower. His wife died about 1900, in childbirth. After her death, he continued to reside in Springfield with his children — four sons and one daughter. Edgar, the oldest son, was 22 years old; Walter, 20; Fannie, 16; George, 13; and Floyd, 9 years at the date of the trial. At the date of the alleged rape, this family was living in a 3-room house in Springfield. The two oldest sons were employed in a furniture factory, and left home for their work about 6 o'clock, as was their custom every work day. The testimony for the state then tended to prove that soon after the older boys left home, the defendant sent the two youngest into the city to gather slops for some hogs he was raising, and they remained away until about noon. After they left, the defendant compelled the girl, Fannie, to get in bed with him, by threatening her with a shotgun if she disobeyed him. He then and there, under these circumstances, had carnal connection with her. About 12:15 the two young boys returned and found the door locked, and she got out of bed and let them in. After preparing their dinner for them, Fannie, the daughter, left the house and went immediately to the police court, and made complaint against defendant. After she left, defendant took his shotgun and went to the furniture factory, and called for one of his sons, and told him that the girl had gone and that there was trouble at the house. Defendant suggested to the son that they had best not return by the public road or street as they might meet the officers, and they went home by a devious route. Defendant was somewhat under the influence of liquor, and, seeing two boys, said, "There are the officers now," but being informed by the son they were boys, they went on home, and defendant was arrested immediately upon reaching his home.

The evidence tended to show that soon after his wife's death, defendant began to have intercourse with this daughter, threatening to kill her if she ever divulged it, and himself. It was also developed in evidence that defendant seldom permitted his daughter to leave him when she was not accompanied by members of the family, and, in this connection, he told her that he was afraid she would forget herself and tell of his conduct towards her if she were permitted to go alone. She did not attend school and was seldom seen with other children. There were but two outside doors to the house in which these parties lived, and these were generally closed and the window blinds down when defendant and his daughter were there alone. His older sons testified that when they returned home from their day's work, they frequently found the doors locked, and the defendant and his daughter there alone. The evidence also disclosed that by threats and the use of a shotgun, defendant compelled his daughter to admit that she had been unduly intimate with two of her brothers, and that by the same means he attempted to force a similar confession from one of the sons, but in this failed. Dr. Woody testified that on April 20th, he made an examination of the prosecutrix, and found that she was well developed for a girl of her age, her physical...