State v. Smith

• Court: Missouri Supreme Court
• Writing for the Court: WALKER, P. J.
• Citation: State v. Smith, 289 S.W. 590 (Mo. 1926)
• Decision Date: 20 December 1926
• Docket Number: 27425
• Parties: STATE v. SMITH

289 S.W. 590

STATE v. SMITH

No. 27425

Supreme Court of Missouri, Second Division

December 20, 1926

Marvin E. Boisseau, of St. Louis, for appellant.

North T. Gentry, Atty. Gen., and James A. Potter, Asst. Atty. Gen for the State.

OPINION

WALKER, P. J.

The defendant was charged by information in the circuit court of the city of St. Louis with the crime of statutory rape.. Upon a trial to a jury, he was convicted and his punishment assessed at 6 years' imprisonment in the penitentiary. From this judgment, he has appealed.

Madeline Jobe, the prosecuting witness, testified that she was 13 years of age and lived with her mother, Emma Fishbeck, in the city of St. Louis. In the forenoon of December 1, 1922, she went to visit her cousins, Elinor and Agnes Fishbeck, who were 12 and 11 years old, respectively, and who also resided in the city of St. Louis. Shortly after she reached their home the defendant, their uncle, appeared. He stayed around the house with these three children, no one else being present, until about noon and left. Some time after noon he returned and about 2:30 or 3 o'clock told Agnes and Elinor to go into the kitchen, that he wanted to tell Madeline something. They went as he directed, where-+ upon he closed the door between the kitchen and bedroom, placed a chair against it, and immediately assaulted the prosecuting witness, forced her back on the bed, and outraged her. While he was engaged in the commission of this crime, Agnes and Elinor pushed the door between the kitchen and the bedroom open, ran into the bedroom, and struck and beat the defendant until he got off of the prosecuting witness.

The children, Elinor and Agnes Fishbeck, corroborated the testimony of the prosecuting witness in all the important features of the case, including the date of its commission. The crime was committed in broad daylight and the witnesses were positive as to the identity of the defendant, whom they well knew.

The defendant testified that he was not at the home of Elinor and Agnes Fishbeck at the time alleged, and that he did not assault the prosecuting witness. Defendant's employer testified that the defendant was in his employ as a chauffeur on December 1, 1922, and did not quit work until 4 or 5 o'clock of that date.

One Heinecke testified that on December 1, 1922, he saw the defendant at work at Leffingwell and North Market streets, in St. Louis, as a shipping clerk for one Hussmann, who was engaged in the refrigerating business; that the defendant was at his place of employment at 11:30 or 11:45 on the morning of December 1, 1922; that he went to lunch, and when he came back about 25 minutes later the defendant was still there. The jury did not believe this testimony.

I. The information is sufficient as to both form and substance. Section 3247, R. S. 1919, as amended, Laws 1921, p. 284a; State v. Houston (Mo. Sup.) 263 S.W. loc. cit. 222; State v Hutchens (Mo. Sup.) 271 S.W. loc. cit. 526, 527; State v. Turner (Mo. Sup.) 274 S.W. 35, 36; State v. Hurlbut (Mo. Sup.) 285 S.W. 470, 472.

II. Counsel for appellant contends that, at the close of the case, the court should have sustained a demurrer to the evidence and directed his acquittal.

The state produced substantial evidence heretofore set out which, if believed by the jury, was sufficient to sustain the verdict. State v. Hurlbut (Mo. Sup.) 285 S.W. 469; State v. Turner (Mo. Sup.) 274 S. W, 35; State v. Hutchens (Mo. Sup.) 271 S.W. 525; State v. Nevitt (Mo. Sup.) 270 S.W. 337; State v. Houston (Mo. Sup.) 263 S.W. loc. cit. 222, 223; State v. Bryant (Mo. Sup.) 252 S.W. 371; State v. Bowman, 278 Mo. loc. cit. 499, 213

S.W. 64. The above assignment of error is overruled.

III. Appellant charges the court with error in refusing to permit him to cross-examine the prosecuting witness with reference to certain immoral acts, stated to have been committed by her with some young boys in the neighborhood. This testimony was properly excluded. It is a felony, under section 3247, R. S 1919, to have carnal knowledge of a female under 16 years of age, regardless of whether others have had such knowledge of her. State v. Ansel (Mo. Sup.) 256 S.W. 762; State v. Loness (Mo. Sup.) 238 S.W. loc. cit. 114; State v. Guye, 299 Mo. loc. cit. 368, 252 S.W. 955; State v. Hewitt (Mo. Sup.) ...