State v. Stevens

• Decision Date: 11 June 1930
• Docket Number: 29876
• Citation: 29 S.W.2d 113,325 Mo. 434
• Parties: The State v. Sam Stevens, Appellant
• Court: Missouri Supreme Court

29 S.W.2d 113

325 Mo. 434

The State v. Sam Stevens, Appellant

No. 29876

Supreme Court of Missouri

June 11, 1930

Appeal from Miller Circuit Court; Hon. R. A. Breuer Special Judge.

Reversed and remanded.

Barney Reed and H. M. Atwell for appellant.

(1) There is no substantial evidence to support the verdict and the verdict should not stand. State v. Guye, 252 S.W. 955, 299 Mo. 348; State v. Taylor, 24 S.W. 449. (2) The verdict is against the law, as declared in the instructions given by the court. (3) The court erred in refusing to give defendant's instruction No. A. A female child is a female person between the ages of birth and puberty. Webster's Dictionary; 7 Cyc. 124; 11 C. J. 756; Blackburn v. State, 22 Ohio St. 110; Wilman v State, 63 Tex. 623, 141 S.W. 110. (4) The court erred in giving instructions 1 to 8 on the part of the State. (5) The court erred in admitting illegal testimony, objected to by the defendant, which in part is as follows: The court permitted the prosecutrix, over the objection of the defendant, to testify that a certain man by the name of Craig had given her money to leave and evade being a witness in the preliminary hearing of this case and permitted the prosecutrix to testify to conversations had with one Pearl Watt out of, and not in, the presence of the defendant. State v. Patrick, 15 S.W. 290; State v Patrick, 107 Mo. 147; State v. Nelson, 166 Mo. 191; State v. Darling, 202 Mo. 150. (6) The court erred in refusing competent evidence offered by the defendant for the purpose of affecting the credibility of the prosecutrix as a witness, in part as follows: The defendant offered to prove and could have proven by the witness Lawrence Peterson, specific acts of immorality that prior to the time of the offense charged he had seen prosecutrix in bed naked with one Charles George. The defendant offered to prove and could have proven by the witness William Witt that the prosecutrix and her mother had conducted a house of prostitution in the city of Eldon prior to the offense charged against the defendant and that he had visited this place and had personal knowledge of the conduct of both the prosecutrix and her mother. He offered to prove and could have proven by witness Pony Shearer that prosecutrix and her mother conducted a house of prostitution in Eldon and that such witness had seen and knew of the lewd and immoral acts of the prosecutrix. The defendant offered to prove by witness John Otten, that prosecutrix had been in the company of one Joe Summers, a married man of bad repute, in Sedalia, drunk, and that prosecutrix had been held in the house of detention and had been convicted in the juvenile court, in Sedalia, for being incorrigible, drunk, and lascivious conduct, together with a great lot more of evidence of this class offered by the defendant by these and other witnesses, such evidence offered and stated at the time of offering same for the purpose only of affecting the credibility of the prosecutrix as a witness.

Stratton Shartel, Attorney-General, and Don Purteet, Assistant Attorney-General, for respondent.

(1) The information is sufficient both as to form and substance. Sec. 3247, R. S. 1919, as amended Laws 1921, p. 284a; State v. Cason, 252 S.W. 688; State v. Turner, 274 S.W. 35; State v. Burlison, 285 S.W. 712. (2) The evidence was sufficient to take the case to the jury. Where the elements of the crime are shown by substantial evidence, this court will not disturb the jury's verdict. State v. Thomas, 1 S.W.2d 157; State v. Smith, 289 S.W. 590; State v. English, 11 S.W.2d 1020; State v. Cooper, 271 S.W. 471; State v. Catron, 296 S.W. 141; State v. Dilts, 191 Mo. 675; State v. Marcks, 140 Mo. 656. (3) The instructions given by the court are not before this court for review, inasmuch as improperly preserved in the motion for new trial. State v. Standifer, 289 S.W. 856. (4) The trial court committed no error in refusing defendant's requested instruction lettered "A." It had no place in the case, inasmuch as the statute authorizes no such interpretation of its terms. Sec. 3247, R. S. 1919, as amended Laws 1921, p. 284a. Sexual intercourse with a girl under sixteen is statutory rape. State v. Hutchens, 271 S.W. 525; State v. Gruber, 285 S.W. 426; State v. Conrad, 14 S.W.2d 608. (5) The trial court committed no error in excluding defendant's offer of specific acts of immorality as touching prosecutrix's credibility. State v. Smith, 289 S.W. 590. Such matters are provable only by general reputation. Want of chastity of prosecutrix in a statutory rape prosecution can only be shown by general reputation. State v. Taylor, 8 S.W.2d 29; State v. Nanna, 18 S.W.2d 70. (6) The trial court committed no error in permitting prosecutrix to testify that the defendant, through his attorneys, and others, gave her money to absent herself from the preliminary hearing. State v. Belknap, 221 S.W. 39. Evidence to show that the accused has attempted to fabricate or procure false evidence, to destroy evidence against himself, to corrupt the witnesses for the State, or to procure their absence by threats of violence or otherwise, is always admissible as showing a consciousness of guilt. Underhill's Criminal Evidence (3 Ed.) 291, sec. 207.

Henwood, C. Davis and Cooley, CC., concur.

OPINION

HENWOOD

By an information filed in the Circuit Court of Miller County, the defendant and John Irwin were jointly charged with statutory rape, that is, with carnally knowing Mary Lou Monroe, a female child under the age of sixteen years. The defendant took a severance, was found guilty and sentenced to imprisonment in the penitentiary for two years, and, in due course, appealed.

The prosecutrix testified: On March 21, 1929, the time in question, she was between fourteen and fifteen years of age living at the home of Mrs. Berry Watt in the town of Eldon, in Miller County, and working in a factory in Eldon. In the evening of March 21, 1929, she and Mrs. Watt and Mrs. Watt's daughter, Bernice, attended church services at the Nazarene Church in Eldon. The defendant and Irwin were there. She left the church building and started home with Mrs. Watt and Bernice about ten o'clock. A short distance from the church building, she saw the defendant and Irwin across the street. They called her across the street and asked her to take a ride with them in an automobile truck. She declined. The defendant told her to get into the truck and that he would take her to her home. After she got into the truck, they refused to take her to her home. They drove south several miles, in Miller County, in the direction of the town of Bagnell. They stopped first at Aurora Springs Park. Irwin exhibited a pistol and told her he knew how to use it. The defendant pulled her out of the truck, threw her on the ground, got on top of her, and had sexual intercourse with her. Irwin held her while the defendant had sexual intercourse with her. They put her into the truck, and drove to the railroad trestle south of Aurora Springs. They stopped there, and the defendant, with Irwin's help, pulled her out of the truck. Irwin held her while the defendant had sexual intercourse with her. Then the defendant held her while Irwin had sexual intercourse with her. They drove back to Eldon, and she got out of the truck about one block from her home. The next day, she told Charlottie Craig, Pearl Watt, Dr. G. D. Walker and H. W. Scott, a justice of the peace, "what happened." On cross-examination, she admitted she "put" her age at "sixteen" when she went to Eldon to obtain employment. She said she did this because she "couldn't work" if she "didn't."

We will hereinafter refer to certain testimony of the prosecutrix which was admitted over the objection of the defendant.

The State offered in evidence the "Family Record" of the Monroe family, which shows that the prosecutrix was born "September 20, 1914," and several close acquaintances of her family testified that she was fourteen years of age at the time of the alleged offense.

The prosecutrix was corroborated, in some particulars, by Mrs. Watt, Bernice Watt, Dr. Walker and H. W. Scott. Mrs. Watt and Bernice said the prosecutrix went with them to the Nazarene Church on the night in question, and, on their way home, the defendant called the prosecutrix across the street, "talked to her a minute," then she and the defendant walked "towards" the truck, which they saw going down the street shortly thereafter. Mrs. Watt also said the prosecutrix did not come home until after midnight. Dr. Walker said, "the day after the assault," the prosecutrix complained to him "that a rape had been committed," and requested "an examination of her sexual organ;" that he called Dr. E. C. Shelton, and they "made an examination together." Both said they found a normal vagina and no hymen; that the vagina had been entered, but they found no tears, lacerations, soreness, nor indications of a recently ruptured hymen; and that they were unable to say whether or not her sexual organ had been entered by the sexual organ of a man. "Squire" Scott said she complained to him about the alleged offense, and signed and swore to the complaint filed before him, on March 22, 1929.

The defendant, testifying in his own behalf, said: He was eighteen years of age, and lived on his father's farm about one mile north of Eldon. He worked on the farm. He had known the prosecutrix two or three months, but was not with her during the evening or night of March 21, 1929. He had never had "a date" with her, and had never, at any time, had sexual intercourse with her. John Irwin is his cousin. Irwin lived in Jefferson City, where he drove a truck for the Capital Fruit Company. Irwin was with him on the evening in question, and stayed at his home that night. In the...