State v. Stroud
| Decision Date | 11 June 1951 |
| Docket Number | No. 42306,No. 2,42306,2 |
| Citation | 362 Mo. 124,240 S.W.2d 111 |
| Parties | STATE v. STROUD |
| Court | Missouri Supreme Court |
Ellis S. Outlaw, St. Louis, John J. Spencer, Jr., Washington, D. C., for appellant, Sarah Spencer Ashmore, Chicago, Ill., of counsel.
J. E. Taylor, Atty. Gen., R. Wilson Barrow, Asst. Atty. Gen., for respondent.
Appellant, Gus Stroud, hereafter referred to as the defendant, was found guilty of forcible rape upon Norma Louise Sandoz and his punishment assessed by the jury at 12 years imprisonment in the penitentiary. From the ensuing judgment and sentence he has appealed.
The State's evidence justifies the following statement of facts. Prosecutrix lived with her husband in an apartment at 1553 Cole Street in the City of St. Louis, Missouri. He played as a musician in a dance band and frequently did not get home from his work until 3:00 or 4:00 o'clock in the morning, thus leaving prosecutrix alone in their apartment during most of the night. On the evening of December 25, 1948, prosecutrix visited a neighbor from 8:00 until 11:00, at which time she returned home, removed her clothing, put on a robe and laid down across the double bed and went to sleep. She awaked about an hour later and found a man upon her who had already begun the act of sexual intercourse with her. The light shining into the bedroom from an adjoining bathroom permitted her to see that it was the defendant, whom she had known casually. She immediately began a struggle to dislodge the defendant, but was not able to do so until they both fell from the bed. Mrs. Sandoz then discovered that another acquaintance, Porky Fletcher, was in an adjoining room. It is significant that Porky Fletcher had been at the apartment of prosecutrix early in the evening and inquired of her husband as to whether he would play in the band that night. He and the defendant left the apartment together. Prosecutrix ran into the street and started up on Franklin Street to call the police, but became frightened and returned home. When her husband arrived, she reported the occurrence to him and he called the police. Mrs. Sandoz was examined by a physician, who found a contusion of her left hip and evidence of recent intercourse. Defendant was arrested shortly after the police received the report from Mr. Sandoz. At the trial he presented evidence tending to establish an alibi.
Defendant contends that the evidence is not sufficient to support the verdict. He does not argue that there was no testimony tending to establish his guilt, but rather that it was not possible for the offense to have occurred in the manner related by prosecutrix. There is no merit to this assignment. According to prosecutrix, the initial penetration was accomplished while she was asleep. This is unusual, but we cannot say it is contrary to physical possibility. Carnal connection with a woman asleep is rape, because the act is without her consent. State v. Welch, 191 Mo. 179, 89 S.W. 945. There was ample evidence to prove every element of the offense. Prosecutrix positively identified the defendant and was corroborated by a number of circumstances. It is the particular province of the jury to find the facts and in so doing to determine the testimony it chooses to believe. That the jurors saw fit to believe prosecutrix and hence reject the conflicting testimony of defendant and some of his witnesses furnishes no legal basis for his complaint.
Defendant in his brief complains of the alleged misconduct of a juror, Miss Emily Lee Miller, who is said to have made a statement during the course of the trial that, 'All of the defendant's witnesses were lying.' We have searched the record and do not find that this was ever proved or called to the attention of the trial court in any manner. Furthermore, no reference to this alleged error was made in the motion for new trial and therefore it was not preserved for review. State v. Cochran, 356 Mo. 778, 203 S.W.2d 707.
Defendant argues that he should have been granted a new trial because of newly discovered testimony. The point was raised in his amended motion for new trial and the affidavits of three proposed witnesses attached thereto. The defendant has utterly failed, however, to meet the requirements for the consideration of such assignment by presenting...
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State v. Malone
...argument so long as his remarks are confined to the record and the legitimate inferences that may be drawn therefrom. State v. Stroud, 362 Mo. 124, 240 S.W.2d 111, 113; State v. Rosegrant, 338 Mo. 1153, 93 S.W.2d 961, 973. No objection was interposed to the only direct remark we find of rec......
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State v. Merritt
...v. Taylor, 320 Mo. 417, 8 S.W.2d 29, 37(25) (1928). See also: State v. Leonard, 182 S.W.2d 548, 551(5) (Mo.1944); State v. Stroud, 362 Mo. 124, 240 S.W.2d 111, 113(9) (1951); State v. Harris, 351 S.W.2d 713, 715-716(1-4) (Mo.1961); and State v. Turnbull, 403 S.W.2d 570, 572-573(5) (Mo.1966)......
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State v. Gilliam, 48437
...word 'impropriety' in the objection are without merit. There was no abuse of discretion on the part of the trial court. State v. Stroud, 362 Mo. 124, 240 S.W.2d 111, 113; State v. Green, Mo., 292 S.W.2d 283, 288. The witness was under no legal obligation to talk to defendant's Defendant ass......
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State v. Pinkus
...would probably produce a different result on a new trial, State v. Harris, 413 S.W.2d 244, 247 (Mo.1967); State v. Stroud, 362 Mo. 124, 127-128, 240 S.W.2d 111, 113(5) (Mo.1951); Duncan v. State, 520 S.W.2d 123, 125(4) (Mo.App.1975), and no such showing was made here. The most that was show......