State v. Sikes, 30171.

• Decision Date: 19 February 1930
• Docket Number: No. 30171.,30171.
• Parties: STATE v. SIKES.
• Court: Missouri Supreme Court

24 S.W.2d 989

STATE v. SIKES.

No. 30171.

Supreme Court of Missouri, Division No. 2.

February 19, 1930.

Appeal from Circuit Court, Iron County; E. M. Dearing, Judge.

Ellic Sikes was convicted of having carnal knowledge of a female child under the age of consent, and he appeals.

Affirmed.

J. H. Keith, of Ironton, and W. A. Brookshire, of Farmington, for appellant.

Stratton Shartel, Atty. Gen., and Henry Depping, Asst. Atty. Gen., for the State.

BLAIR, P. J.

Defendant was convicted in the circuit court of Iron county of the crime of having carnal knowledge of a female child under the age of consent. The jury assessed his punishment at imprisonment in the state penitentiary for a term of two years. Upon being advised that defendant was only eighteen years of age, the trial court commuted the sentence to confinement in the reformatory for two years, and thereafter an appeal was granted to this court.

A careful reading of the testimony discloses that defendant's (appellant's) counsel have fairly and accurately stated the facts, and we adopt the same, as follows:

"The testimony shows that the prosecuting witness was thirteen years of age at the time of the alleged rape; that she, in company with the defendant and four other young people, went from Iron Mountain, Missouri, to a place in Iron County called Elephant Rock; that they arrived at Elephant Rock about 9:30 a. m.

"The prosecutrix testified that she met the defendant at Elephant Rock; that the defendant stood her up by the rock, pulled her bloomers down and then made her lie down; that, `and he went and done that,' and `his practical parts went in me'; that after other witnesses had testified the prosecutrix was recalled and testified as follows:

"`He laid me down and had sexual intercourse with me; and he pulled my bloomers down and laid me down and had sexual intercourse with me.'

"That upon cross-examination she admitted that the Prosecuting Attorney, Mr. Francis, had told her to answer his questions in that way.

"Dr. E. L. Barnhouse testified for the State to the effect that he had made an examination of the prosecutrix on the night following her trip to Elephant Rock with the defendant and found that the vagina of the prosecutrix was irritated and the members were reddened; that in his opinion the girl had had intercourse with some man.

"Dr. R. C. Kitchell testified for the State and stated that he, together with Dr. E. L. Barnhouse, made a physical examination of the prosecutrix on the night following the trip to Elephant Rock and found `an abnormal hyperemia of the mucous membrane of the vagina,' which indicated some irritation, either mechanical or bacterial.

"Defendant offered no testimony but stood upon his demurrer to the evidence."

The main contention of appellant is that there was not sufficient proof of penetration to authorize conviction. To this point appellant cites State v. Dalton, 106 Mo. 463, 17 S. W. 700; State v. Wellman, 253 Mo. 302, 161 S. W. 795; State v. Brown, 209 Mo. 413, 107 S. W. 1068; State v. Tevis, 234 Mo. 276, 136 S. W. 339; and State v. Taylor (Mo. Sup.) 8 S.W.(2d) 29. The last four cases cited do not consider the question of the sufficiency of the proof of penetration at all and need not be considered further on that question. In the Dalton Case the proof showed that defendant slipped into bed with prosecutrix while she was asleep and fondled her person, etc. It did not appear that defendant made any attempt at copulation when prosecutrix refused her consent. The proof in that case falls far short of the proof in the case at bar.

It is evident from the record here that prosecutrix was very ignorant and that she was probably frightened at her experience as a witness. When she used the words "practical parts," she apparently meant private parts. After evident coaching, she returned to the witness stand and said that defendant had sexual intercourse with her. True, prosecutrix said that the prosecuting attorney had told her to answer the question in that manner, but the weight of such testimony was for the jury. That sexual intercourse occurred is a reasonable inference to be drawn from the testimony of the physicians who examined prosecutrix within a few hours after she said the sexual act was accomplished. Appellant did not see fit to take the witness stand, even to deny his presence with prosecutrix at the time and place of the alleged commission of the...