State v. Sutton

• Decision Date: 07 February 1911
• Citation: 134 S.W. 663,232 Mo. 244
• Parties: STATE v. SUTTON.
• Court: Missouri Supreme Court

134 S.W. 663

232 Mo. 244

STATE v. SUTTON.

Supreme Court of Missouri, Division No. 2.

February 7, 1911.

1. CRIMINAL LAW (§ 1083)—APPEAL—EFFECT OF TRANSFER OF CAUSE.

The defendant was convicted of a statutory offense, and his appeal was granted, but two days afterwards, and after his appeal bond had been approved, the circuit court of its own motion, in the absence of the defendant, and without notice to him, set aside its orders granting an appeal and overruling the motion for a new trial, and granted defendant a new trial, upon which he was convicted, and from which he took a second appeal. Held, that all the orders subsequent to the granting of the first appeal were illegal, and that the first appeal would be considered as though the court had not granted defendant a new trial.

2. RAPE (§ 52)—EVIDENCE—FACT OF PROSCUTRIX BEING UNMARRIED—SUFFICIENCY.

In a prosecution under Rev. St. 1909, § 4472, for having carnal knowledge of an unmarried female between the ages of 14 and 18 years, evidence held sufficient to warrant the jury in finding that prosecutrix was unmarried.

3. CRIMINAL LAW (§ 1144)—APPEAL AND ERROR — REVIEW—PRESUMPTIONS—VERDICT.

Where the verdict is general and refers to the count upon which defendant was tried, the presumption is that the jury considered all the elements of the charge and found all the issues against the defendant.

4. RAPE (§ 52)—EVIDENCE—PREVIOUS CHASTE CHARACTER OF PROSECUTRIX.

In a prosecution for carnally knowing an unmarried female under the age of consent, a finding that prosecutrix was of previous chaste character held supported by substantial evidence.

Appeal from Circuit Court, Reynolds County; Jos. J. Williams, Judge.

Otho Sutton was convicted in the Circuit Court of carnally knowing an unmarried female between the ages of 14 and 18 years, of previous chaste character, and he appealed. Order granting appeal set aside by trial court, and defendant granted a new trial, and from a conviction therein he appeals Conviction upon first trial affirmed, and conviction upon second trial reversed.

J. H. Raney and James Orchard, for appellant. E. W. Major, Atty. Gen., and John M. Dawson, Asst. Atty. Gen., for the State.

BROWN, J.

The defendant was convicted in the circuit court of Reynolds county, on November 25, 1909, of violating section 4472, Rev. St. 1909, by having carnal knowledge of one Ida Speer, an unmarried female, between the ages of 14 and 18 years, of previous chaste character. His punishment was assessed at a fine of $400, and after unavailing motions for a new trial and in arrest of judgment he appeals to this court.

The record proper shows that on February 27, 1909, two days after this appeal was granted, and after defendant's appeal bond had been approved, the trial court set aside its order granting the appeal, as well as its orders overruling the motions for new trial and in arrest, and granted defendant a new trial. A second trial also resulted in the conviction of defendant, from which he has filed a second appeal in this court.

It is contended by the defendant that the unusual action of the circuit court in setting aside his appeal and granting him a new trial was without notice to him and without his consent, and as these orders appear to have been made by the court of its own motion, and do not recite any appearance or notice, it is fair to presume that defendant was absent and did not consent to their entry.

While circuit courts have power to set aside or modify their orders and judgments during the term at which such orders or judgments are entered when the litigants are actually or constructively before the court, we believe it would be an unwarranted expansion of their discretion to permit them of their own motion to reopen cases in which their jurisdiction has been exhausted by granting appeals. Ex parte McAnnally, 199 Mo. 512, 97 S. W. 921; State v. Biesemeyer, 136 Mo. App. 668, 118 S. W. 1197.

This court has heretofore refused to sanction the practice of trial courts in changing or modifying final judgments, even during the same term at which they were entered, without notice to the litigants whose interests are affected, but who are no longer in court. Ault v. Bradley, 191 Mo. 709, 90 S. W. 775.

We therefore conclude that all the orders made in this cause subsequent to the granting of the appeal to this court on...