State v. Swain

• Decision Date: 06 February 1912
• Citation: 239 Mo. 723,144 S.W. 427
• Parties: STATE v. SWAIN.
• Court: Missouri Supreme Court

144 S.W. 427

239 Mo. 723

STATE v. SWAIN.

Supreme Court of Missouri, Division No. 2.

February 6, 1912.

1. RAPE (§ 52)—EVIDENCE—SUFFICIENCY.

Evidence held to support a conviction of rape on a child 12 years old.

2. CRIMINAL LAW (§ 1159)—VERDICT—EVIDENCE—SUFFICIENCY.

The weight of the testimony is for the jury, and a verdict supported by testimony of the prosecuting witness corroborated by several witnesses will not be disturbed on appeal.

3. CRIMINAL LAW (§ 772)—TIME OF COMMISSION OF OFFENSE—INSTRUCTIONS.

Under Rev. St. 1909, § 4944, authorizing the prosecution at any time of an offense punishable by death or life imprisonment, the instructions on a trial for rape on a child 12 years old are not objectionable for failing to fix a time limit within which the jury should find the commission of the offense.

4. CRIMINAL LAW (§ 814)—EVIDENCE—INSTRUCTIONS.

Where the theory of accused is not supported by evidence, an instruction submitting his theory need not be given.

5. CRIMINAL LAW (§ 1028)—REVIEW—OBJECTIONS IN LOWER COURT—MOTION FOR NEW TRIAL.

A defendant who did not require the court to order the state to produce the witnesses who had been summoned, and who did not save the point in a motion for new trial, may not urge the point on appeal.

6. CRIMINAL LAW (§ 666)—EVIDENCE—OBLIGATION OF STATE TO CALL WITNESSES.

The state need not call witnesses merely for corroboration.

7. CRIMINAL LAW (§ 723)—IMPROPER ARGUMENT OF COUNSEL.

The argument of the prosecutor on a trial for rape on a child that if the jury made an example of accused, if they believed he was guilty, it would tend to the protection of girls, was not reversible error, as improperly influencing the jury.

Appeal from St. Louis Circuit Court; Geo. C. Hitchcock, Judge.

General Swain was convicted of crime, and he appeals. Affirmed.

Defendant was convicted in the circuit court of the city of St. Louis of the crime of rape upon one Clara Jefferson, 12 years old, and setenced to 11 years in the penitentiary.

The testimony for the state tended to show: That the prosecutrix lived with her parents at their home, located within three or four houses of defendant's saloon. On the afternoon of December 1, 1909, she visited at the home of a girl friend until about 6 o'clock. On her way home she saw defendant standing in the side door of his saloon, which opened into a hallway and stairs leading to the second story, where defendant had rooms and made his residence. He addressed her as she was passing by, asking if she wanted a fairy storybook, to which she replied in the affirmative. He then told her to follow him upstairs to his room, which she did. Both having entered the room, he locked the door, told her he had no picture book, but wanted to have sexual intercourse with her. She demanded that he let her out of the room, which he refused to do, and then took off his coat and vest, and directed her to remove certain parts of her clothing. This she refused to do, again asked him to let her out of the room, and made an effort to open the door. After telling her that it was useless to push or attempt to open the door, he removed certain parts of her clothing, placed her on the bed, and had sexual intercourse with her. He then unlocked the door, and went into the hall, leaving the girl in the room. A man and woman in an adjoining room overheard the conversation, and were aware of what took place. The man informed the mother of the girl, and she, in company with a friend, went up to said hallway, and found defendant there. She asked him if her daughter was in his room, and he replied she was not. In compliance with her request to show her through the house, he took her into the kitchen and another room, but refused to let her into the front room, in which the girl then was, giving as his reason for such refusal that the room was rented to another person, and he had no key. The door to the room was locked, and she stated that she would get an officer and forcibly enter the room. She then left the building, whereupon the defendant unlocked the door of the room, and told the prosecutrix to run away and never return home, as, if she did, her parents would kill her. The girl left the room, went downstairs, and ran in a direction away from her home. Her mother and another woman saw her leave the place and run along the street. She went to the home of a cousin, where she remained all night. After returning to her home and informing her mother of all that occurred, an examination of her person was made, which showed some soreness. Defendant denied having had intercourse with the prosecutrix, and...