State v. Sheard
| Decision Date | 14 March 1955 |
| Docket Number | No. 44459,No. 2,44459,2 |
| Parties | STATE of Missouri, Respondent, v. Leslie SHEARD, Appellant |
| Court | Missouri Supreme Court |
John P. Haley, Jr., Austin B. Speers, Kansas City, for appellant.
John M. Dalton, Atty. Gen., Grover C. Huston, Asst. Atty. Gen., for respondent.
STOCKARD, Commissioner.
On June 2, 1953, in the Circuit Court of Jackson County, Missouri, Leslie Sheard was convicted of rape. The jury imposed a sentence of thirty-five years imprisonment in the State Penitentiary, but pursuant to Section 546.430 RSMo 1949, V.A.M.S. and Supreme Court Rule 27.04, 42 V.A.M.S., the trial judge reduced the sentence to twenty-five years imprisonment.
No brief has been filed on behalf of appellant so we consider the matters preserved for review by the six assignments of error in the motion for new trial.
It has been a mandatory requirement of statute, Section 547.030 RSMo 1949, V.A.M.S., and now of Supreme Court Rule 27.20 that the motion for new trial 'must set forth in detail and with particularity' the specific grounds or causes therefor. State v. Gaddy, Mo.Sup., 261 S.W.2d 65; State v. Burks, Mo.Sup., 257 S.W.2d 919. This Court has repeatedly held to be insufficient to preserve anything for review such general statements in a motion for new trial as, 'The verdict is against the law and the evidence', State v. Gaddy, supra; State v. McHarness, Mo.Sup., 255 S.W.2d 826; State v. Politte, Mo.Sup., 249 S.W.2d 366; State v. Johnson, Mo.Sup., 248 S.W.2d 654, 'The verdict is against the weight of the evidence', State v. Rohman, Mo.Sup., 261 S.W.2d 69; State v. Burks, supra ; State v. McHarness, supra, and 'The prosecuting attorney misquoted the evidence in his final argument', State v. Eison, Mo.Sup., 271 S.W.2d 571; State v. Farris, Mo.Sup., 243 S.W.2d 983. The above three assignments of error, quoted in their entirety from the motion for new trial in this case, preserved nothing for review.
The next assignment of error was that 'There was no proof that defendant participated in the rape or was a party to the rape.' This necessitates a statement of the evidence.
After attending a picture show in Kansas City, Missouri, on the evening of February 14, 1953, the prosecutrix, the mother of two grown sons, went to a cafe three or four blocks from her apartment in the 2900 block of Forest Street, Kansas City, Missouri. At the cafe she met Willard Beckett, a friend whom she had known for some time. Shortly after midnight while she was being escorted to her apartment by Mr. Beckett, the appellant, his brother Levi Sheard, and Lloyd Thompson assaulted them. Mr. Beckett was knocked unconscious. The prosecutrix was struck in the eye and knocked down. Her assailants took her watch and purse, and then took her coat and placed it over her head. While she was on the ground she 'peeked' from under the coat and the appellant hit her on the back of her head and told her to look the other way and that 'he meant business.' The prosecutrix was then taken across the street with the coat still over her head, and she was placed in an automobile. She was scared, and when she asked where they were going to take her she was told 'not very far,' and that if she would do as told she would not be hurt. She was in the car about thirty minutes during which time there were three separate acts of sexual intercourse with her. Actual penetration was had each time. The car was stopped twice, and after each act of intercourse the man in the back seat with her exchanged seats with one of the men in the front seat. During the time she was in the car the coat was kept over her head and she did not know if each of the three men had sexual intercourse with her or if one engaged in the act more than once. The prosecutrix was released at Twenty-sixth and Woodland Streets in Kansas City, Missouri, and she went immediately to a neighboring residence, reported what had occurred, and the police were called. She looked as though 'she had had quite a struggle,' her stockings were torn, she had a mark on the side of her face, her arms were red and marked, her eye was bruised and she had abrasions on her forehead. She was immediately taken to a hospital and an examination disclosed seminal fluid and male spermatozoa in her vagina. Later she was examined at a clinic and was told that she 'had been given a case of gonorrhea.'
During the afternoon of February 15, 1953, the appellant and his two companions were arrested near Russellville, Arkansas. In their car were found two handkerchiefs and a perfume case which had been in the purse of the prosecutrix at the time of the assault. Also an overcoat and billfold, which were the property of Willard Beckett, were in their car. Appellant admitted orally to a police officer on February 21, 1953, that the prosecutrix 'was raped in the car' and that he was present, but he denied that he had sexual intercourse with her. The prosecutrix identified the appellant, and also Levi Sheard and Lloyd Thompson, in a police line-up, and positively identified the appellant at the trial as one of her attackers.
On February 22, 1953, appellant made a written statement to police officers in which he admitted substantially all of the facts related by the prosecutrix pertaining to him and his companions, except he stated that Levi Sheard struck the prosecutrix. He denied that he struck her or had sexual intercourse with her. He admitted in his statement that he was with Levi Sheard and Lloyd Thompson at the time of the assault, that he knew the prosecutrix was taken to the car for the purpose of having sexual intercourse with her, that he was the driver of the car when Lloyd Thompson had sexual intercourse with her in the back seat of the car, and that at the time he knew what was occurring. He also stated that when the car was stopped Levi Sheard changed places with Lloyd Thompson in the back seat, but he did not know if he had sexual intercourse with her. The appellant presented no evidence.
This assignment of error is a challenge against the sufficiency of the evidence, and in determining this we consider as true the evidence favorable to the State and the favorable inferences reasonably to be drawn therefrom. State v. Harmon, Mo.Sup., 243 S.W.2d 326; State v. Swindell, 357 Mo. 1090, 212 S.W.2d 415. It is admitted in the assignment that a rape of the prosecutrix did occur, and the evidence was clearly sufficient for a jury to find that prosecutrix was forcibly ravished. She was knocked to the ground by appellant or one of his companions and was then struck on the head for doing nothing more than 'peeking' from under the coat. The three men then took her to the car and they warned her that if she would do as told she would not be hurt. When she was hit for peeking from under the coat she experienced what could happen to her if she did not do what she was told. She had also seen the three men knock her companion unconscious. She had good reason to believe that these three men would probably not be mild in their retaliatory action against her if she did not do as told. Her physical appearance immediately after she was released from the car clearly indicated that the treatment she received at the hands of appellant and his companions had been rather severe, and that even after the threats of bodily harm her ravishment was not accomplished without 'quite a struggle.'
In State v. Burlison, 315 Mo. 232, 285 S.W. 712, 715, this Court held that where two 'persons are jointly charged and the proof shows that they acted together, aiding and assisting one another in the perpetration of successive rapes, or that the one committed the act and the other did not, but such other stood by and aided and assisted the one in the commission of such act, they may be jointly charged with the commission of such act and both may be convicted under such charge.' It has also been held that, "A party may be charged with doing the act himself, and be held liable under such charge, for being present, aiding, and assisting another in doing it." State v. Sykes, 191 Mo. 62, 89 S.W. 851, 855. The general rule is that, 'all persons present aiding and abetting another in the commission of rape are guilty as principals and punishable equally with the actual perpetrator of the crime.' 75 C.J.S., Rape, Sec. 18, page 483. See also 44 Am.Jur., Rape Sec. 33, p. 921.
Appellant and his two companions were charged in the same information. His companions asked for a severance and appellant was tried separately. We need not decide if there was substantial evidence that appellant was one of those who actually had sexual...
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