State v. Simerly
| Decision Date | 08 March 1971 |
| Docket Number | No. 1,No. 55792,55792,1 |
| Citation | 463 S.W.2d 846 |
| Parties | STATE of Missouri, Respondent, v. Chester Charles SIMERLY, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., John W. Cowden, Asst. Atty. Gen., Jefferson City, for respondent.
R. H. Mos, Jr., Farley, for appellant.
HOUSER, Commissioner.
Chester Charles Simerly was charged with and convicted by a jury of incest, under § 563.220, RSMo 1969, V.A.M.S., by committing fornication with his 15-year-old daughter G_ _. He was sentenced to the maximum punishment fixed by the statute: 7 years' imprisonment. After an unavailing motion for new trial he has appealed from the judgment of conviction.
Appellant's sole point is that the court erred in not granting a new trial because the State's evidence was based upon the uncorroborated testimony of the prosecutrix, testimony which was 'confusing and conflicted with the physical facts.' Appellant relies heavily upon State v. Tevis, 234 Mo. 276, 136 S.W. 339, for the proposition that a conviction for incest based upon the uncorroborated testimony of a prosecutrix cannot stand where that testimony is contradictory, or when it is not convincing when applied to the admitted facts. Appellant argues that prosecutrix was 'very confused regarding the act allegedly taking place on November 21, 1969'; was unable to state with certainty on what day of the week it occurred; was unable to describe the area where the act took place although she testified she had been there many times previously; and that she demonstrated an inability to describe a house between Smithville and Edgerton where she testified she and her father had had sexual intercourse a number of times.
We do not read confusion in prosecutrix' testimony as to the act or as to the time and place when and where she says the act was committed, nor do we find any incapacity on her part to describe the house where other acts of incest are alleged to have taken place. On direct examination G_ _ testified that on November 21, 1969 she was living in a house trailer in Platte County with her parents and six brothers and sisters; that on that day she and her father drove to St. Joseph to see a motion picture, 'Carman, Baby,' a 'dirty' show playing at an outdoor theatre; that the route they took home was Interstate 29, by Dearborn, crossing the Platte River; that her father stopped the car off to the side of the road on the Platte River in Platte County, not very far off the road--'It's just a little turn in and you drive your car--oh, it's not very far, kinda off from the highway.' On cross-examination she was asked on what day of the week November 21, 1969 fell and she answered . Quizzed with respect to the place, she testified that it was 8 miles from Dearborn on a blacktop highway which she thought was 'Z'; that Although she acknowledged that she did not know directions, she stated that the place was not very far from the road; that you could hear another car coming; that there were no trees between them and the highway, but that no car passed; that although it was 'right there in the open,' it was dark, about 1 a.m.; 'it was pitch black dark'; that it was cold but they turned the heater on and it was warm in the car 'at first anyway.' She described in graphis terms a sexual intercourse between her and her father on that occasion and testified that intercourse between them started when she was seven or eight years of age and occurred two or three times a week, 'almost every weekend'; that her father told her that if she told anyone they would put her in reform school and he and her mother would go to prison and she would never see them or the kids again; that she was afraid of her father; that before an intercourse her father would ask her, and
The foregoing does not indicate confusion on the part of prosecutrix with respect to the act or the time and place so as to require the setting aside of this conviction.
Nor does her testimony about the house between Smithville and Edgerton demonstrate confusion. She testified that she and her father had intercourse at that house seven or eight times. She described the route from Smithville to Edgerton. She spoke of roads that turn off; the distance from Edgerton in...
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Gezzi v. State
...(in rape of an adult, evidence of prior bad acts was admissible to show common plan, scheme or depraved sexual instinct); State v. Simerly, 463 S.W.2d 846 (Mo.1971) (evidence of prior incestuous acts with sister of victim admissible for corroborative purposes.); State v. Eiler, 762 P.2d 210......
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