State v. Smith

• Decision Date: 14 May 1907
• Citation: State v. Smith, 203 Mo. 695, 102 S.W. 526 (Mo. 1907)
• Parties: STATE v. SMITH.
• Court: Missouri Supreme Court

102 S.W. 526

203 Mo. 695

STATE v. SMITH.

Supreme Court of Missouri, Division No. 2.

May 14, 1907.

1. CRIMINAL LAW — CONDUCT OF PROSECUTING ATTORNEY — OPENING STATEMENT.

On a trial for rape, it was not error to permit the prosecuting attorney to state in opening the case that he expected to show that the knowledge of the prosecutrix, 17 years of age, was limited, and that she compared in information with a girl between 10 and 11 years of age.

2. SAME — MOTION FOR NEW TRIAL — GROUNDS.

Where a motion for a new trial in a criminal case did not assign as error a statement made by the prosecuting attorney in opening the case, the error was not reviewable.

3. SAME — INTERPRETER — APPOINTMENT — DISCRETION OF TRIAL COURT.

Where prosecuting witness was deaf and dumb, the court did not abuse its discretion in permitting a professor at a state deaf and dumb institute to act as interpreter on the ground that he was biased in her favor because she had been a pupil at the institute.

4. WITNESSES — COMPETENCY — DEAF AND DUMB PERSON.

A person deaf and dumb and possessing intelligence of a child about 10 years of age is a competent witness.

5. RAPE — EVIDENCE — SUFFICIENCY.

On a trial for rape evidence held to support a conviction.

Appeal from Circuit Court, Barry County; F. C. Johnston, Judge.

J. T. Smith was convicted of crime, and he appeals. Affirmed.

J. W. George and J. S. Davis, for appellant. The Attorney General and N. T. Gentry, for the State.

GANTT, J.

The prosecution in this case was commenced by an information filed by the prosecuting attorney of Barry county, duly verified, on August 22, 1905, wherein he charged the defendant with rape on Ada Stotts, a female, 17 years of age, in Barry county, in the month of June, 1905. The information is sufficient in form and substance, and it is unnecessary to reproduce it. The defendant was arrested and duly arraigned at the September term, 1905, of the Barry circuit court, and on his application the cause was continued to the February term, 1906. At said February term the defendant was put upon trial and convicted, and his punishment assessed by the jury at 14 years in the penitentiary. In accordance with the verdict, the defendant was sentenced to the penitentiary, and from that sentence he has appealed to this court.

The state's evidence tended to prove that Ada Stotts, the prosecuting witness, is deaf and dumb, and has been thus afflicted ever since she was two years old. At the time of the commission of the crime charged, June 8, 1905, she was 17 years old, although in intelligence she was more like a child. The mother of prosecutrix testified that she was like a child eight years old in intelligence. The assistant superintendent of the Deaf and Dumb Institute at Fulton testified that she was like a child 11 years old in intelligence; and the physician examined her gave it as his opinion that she was like a child 9 or 10 years old in intelligence. Although 17 years old, prosecutrix would follow her mother around like a small child, and would sit down, dress a doll, and play with a doll by the hour. For some months prior to June, 1905, prosecutrix had been attending the Deaf and Dumb Institute at Fulton; and at the close of the school year she returned to her home. Prosecutrix was then living with her father and mother southwest of Stotts City, a little town in the western part of Lawrence county. She was accompanied from Fulton by a teacher and other pupils of that school as far as Springfield. There she was placed in charge of the passenger conductor on the Frisco Railroad. Prosecutrix had a ticket to Sarcoxis, which was the station where her relatives were to meet her, but by a mistake she did not change cars at Pierce City, and was carried on to Ritchey, in Newton county. At Ritchey the conductor took prosecutrix into the depot and placed her in charge of the station agent; she being a stranger and never having traveled over that road before. Prosecutrix was then crying, frightened, and suffering from a severe headache. The station agent took prosecutrix to the Sanders Hotel, and introduced her to Mrs. Sanders, the landlady. Prosecutrix took dinner and supper at the hotel, and met the defendant, who was boarding there. Defendant represented to Mrs. Sanders and also to the station agent that he was an old friend of the Stotts family, and offered to take care of prosecutrix. He did not tell prosecutrix that he was acquainted with her people. During the afternoon defendant took prosecutrix to a drug store, where he purchased some ice cream for her, also some candy and medicine. At defendant's suggestion, prosecutrix ate the ice cream and candy and took the medicine. This was behind the partition at the back of the drug store. Then defendant kissed prosecutrix, and tried to take improper liberties with her, but she struck his hand. Defendant, who seems to have been a good scribe and who talked to prosecutrix by writing, persuaded prosecutrix to go to Monett, to have a good time, and she consented to go with him. Accordingly, the two left Ritchey about 7:30 p. m., and arrived at Monett about 9 of the same evening. Before leaving the hotel at Ritchey the defendant changed his clothes, put on a clean...