State v. Selle

• Decision Date: 13 May 1963
• Docket Number: No. 1,No. 49386,49386,1
• Citation: 367 S.W.2d 522
• Parties: STATE of Missouri, Respondent, v. Robert Lee SELLE, Appellant
• Court: Missouri Supreme Court

Page 522

367 S.W.2d 522

STATE of Missouri, Respondent, v. Robert Lee SELLE, Appellant.

No. 49386.

Supreme Court of Missouri, Division No. 1.

May 13, 1963.

John C. Pohlman, William H. Costello, Kansas City, for appellant.

Thomas F. Eagleton, Atty. Gen., Ike Skelton, Jr., Sp. Asst. Atty. Gen., Jefferson City, for respondent.

PER CURIAM.

Defendant, Robert Selle, was indicted for making an assault with malice aforethought upon one Theresa Rooney and beating her with his fists with force likely to produce death or great bodily harm, with felonious intent to ravish and rape her. Section 559.180. (All statutory references are to RSMo 1959, V.A.M.S., and all references to rules are to our Rules of Criminal Procedure, V.A.M.R.) Upon trial he was found guilty and his punishment was fixed at imprisonment in the penitentiary for a term of three years. From the ensuing judgment and sentence, he appeals.

About 11:30 P.M. on Saturday, May 20, 1961, Theresa Rooney, then nineteen years of age, came home after 'a date.' She usually slept in the same upstairs bedroom with her mother; but, to avoid disturbing her mother who had been ill, on this occasion Theresa partially undressed, slipped on a robe, and lay down on a couch in the living room with a comforter over her. Early in the morning, she was awakened when someone started to pull the cover off her. Still 'half asleep,' she first thought that it probably was her mother; and, glancing at the clock on the mantel, she turned on her stomach. When the cover started coming off again, she realized that it was not her mother and that someone was crouching on the floor. Turning on her side and starting to raise up, she saw a man 'leaning over the couch about a foot and a half from me.' As she looked at him, 'he raised up real quick and he hit me; and I started to screaming and the more I screamed, the more he hit.' In an effort to protect her face and head, she 'flopped back' on her stomach and put her hands over her head.

Aroused by the screaming, her parents quickly came downstairs, but by the time they reached her the intruder was gone. Theresa was bleeding from a laceration on her lower lip; and the blows which had been rained upon her resulted in swelling and discoloration around the left eye--'a real good shiner,' bruises on her face which were still noticeable eight weeks later, bruises on her left wrist and forearm with 'hemorrhage under the skin into the muscle,' and 'lumps and sore places all over the back of (the) neck and head.' Theresa's father discovered that both the outside door to the basement garage and the kitchen door at the top of the basement stairs were open after the assault, although both had been closed the previous evening.

The assault occurred about 4:45 A.M., only some thirteen minutes before sunrise as we may note judicially. State v. Powell, Mo., 306 S.W.2d 531, 533(2), 66 A.L.R.2d 1141: Haley v. Edwards, Mo., 276 S.W.2d 153, 161(12). There were several windows in the living room, the blinds either 'had been taken down to be washed or they were all the way up,' and Theresa said that 'it was light' in the room. When investigating officers arrived, Theresa gave them a description of her assailant; and, from 'yearbooks' brought by the officers that same day, she 'picked out' defendant's picture. In 'the lineup' at the police station on the following day, i.e., on Monday, May 22, and at the trial, she positively identified defendant. In the course of the assault, the clasp on Theresa's wrist watch was opened--'it was out like this (indicating).' When arrested on the evening following the assault, defendant had 'small round wounds' on his forearms.

When officers went to defendant's home about 8:00 P.M. on Sunday, May 21, they found defendant, his wife, and two men identified as Frank Harmon and Ronald Heibert. They arrested Heibert, for whom they had a warrant on another offense, and took him to jail. About forty-five minutes later, they returned to defendant's home and took him into custody. When questioned by the officers, defendant first stated that his wife had been at home with him 'the entire night' of the assault. However, his subsequent story to the officers and upon trial (then supported by his father-in-law and his wife) was that she, being pregnant and ill, had stayed at the home of her parents that night, but that, when she had become 'more ill' during the night, her father had brought her home between 4:30 and 5:30 A.M. so that defendant could take her to a doctor. Defendant further said that, on the evening of Saturday, May 20, he had played the drums in an orchestra at the Tropical Bar in Kansas City; that he got off work at 1:00 A.M., waited around to get paid, and left the bar about 1:30 A.M. with Ronald Heibert, who had been living with him about one week; and that, as he and Heibert walked out of the bar, his landlord, Frank Harmon, who was waiting for him, 'asked if I (defendant) had the rent money' and 'I said 'yeah." On the way home in his 1949 Plymouth, defendant stopped for brake fluid. When he got home, defendant 'worked a little bit on my television--it quit working that afternoon.' Heibert 'put hot dogs on the stove and I (defendant) cooked some mush and we ate.' Then, 'I played my guitar a little while before we went to bed.' Defendant was awakened by his wife when her father brought her home early in the morning. He denied that he had ever been in the Rooney home. He was eighteen years of age at the date of the assault and nineteen at the time of trial in November 1961. Neither Heibert nor Harmon testified.

Turning to defendant's complaints (although not in the order of their presentation in his brief), we consider first the refusal to quash the indictment because (so it is alleged) only one witness testified before the grand jury and that witness did not testify to a material fact. The transcript shows no more than that at least one witness appeared before the grand jury. What he testified, we do not know. It is true that a grand jury must hear evidence before returning an indictment. State v. Faulkner, 185 Mo. 673, 84 S.W. 967, 973; State v. Grady, 84 Mo. 220. But the grand jury is the judge of the sufficiency of the evidence before it. State ex rel. Clagett v. James, Mo., 327 S.W.2d 278, 284; State v. Shawley, 334 Mo. 352, 67 S.W.2d 74, 82; State v. Bragg, Mo.App., 220 S.W. 25, 28(8, 9); State v. Randolph, 139 Mo.App. 314, 123 S.W. 61, 62(1). The motion to quash properly was overruled.

Error is assigned in that Circuit Judge James S. Rooney 'was without jurisdiction' to preside at the arraignment or 'to pass on (defendant's) application for change of venue.' The assault occurred in the home of Judge Rooney and the victim was his daughter. The indictment was returned on May 24, 1961. On June 9, 1961, defendant filed application for change of venue on account of the bias and prejudice of the inhabitants of Clay County. On June 12, 1961, the cause was transferred to the Circuit Court of Carroll County pursuant to written stipulation signed by the prosecuting attorney, defendant and his attorney. The only authority cited to this point in defendant's brief is Section 545.660 [see Rule 30.12], which provides that a circuit judge shall be disqualified 'to hear and try' any criminal case in which the judge is in any wise interested or prejudiced. (All emphasis herein is ours.) Neither the cited statute nor the superseding rule disqualified Judge Rooney from receiving the indictment. State v. Millsap, 310 Mo. 500, 276 S.W. 625, 628(3); State v. Goddard, 162 Mo. 198, 62 S.W. 697, 708(22). Of course, a trial judge should retire and proceed in accordance with Rules 30.13 and 30.14 whenever prejudice is suggested either by affidavit pursuant to Rule 30.12 or by his own conscience [State v. Huett, 340 Mo. 934, 104 S.W.2d 252, 258(5)], and we entertain no doubt but that Judge Rooney would have disqualified himself if the defendant had not voluntarily entered into the written stipulation to transfer the case to another circuit. As the record stands, we can find no violation of or prejudice to defendant's rights under the above-stated assignment.

Another complaint is that 'five' reputable citizens testified under oath in the Circuit Court room of Carroll County that they saw Judge Rooney * * * in the jury room with the door closed with members of the jury present and saw conversation in the hallway between members of the Rooney family and members of the jury.' This point was raised in the motion for new trial, on which the transcript indicates that evidence was heard. But, if so, such evidence was not included in the transcript, and nothing therein supports the quoted statement. Neither assignments in motions for new trial nor points in appellate briefs prove themselves [State v. Taylor, Mo., 327 S.W.2d 880, 884(4); State v. Gaddy, Mo., 261 S.W.2d 65, 68(11, 13); State v. Lay, Mo., 61 S.W.2d 738, 739(6)], and certainly we should not and do not, on the unconfirmed assertion of counsel, impugn the integrity of those against whom this charge is leveled. Nothing is presented for review under this point. State v. Daniels, Mo., 347 S.W.2d 874, 880(10).

In connection with defendant's earnest contention that the state failed to make a submissible case, we observe preliminarily that an assault with the fists may be a force likely to produce death or great bodily harm. State v. Gillespie, Mo., 336 S.W.2d 677, 680; State v. Spradlin, 363 Mo. 940, 254 S.W.2d 660, 661. However, pointing out that malicious assault with intent to rape was charged, defendant argues that there was 'no proof of any overt act' and no evidence from which an intent to rape might have been inferred. True, an essential element of an offense under Section 559.180 is a specific intent to do one or more of the things there named, in this instance (as the indictment charged) the specific intent to rape [State v. Martin, 342 Mo. 1089, 119 S.W.2d 298, 301; State v....