State v. Sykes

• Decision Date: 18 March 1913
• Citation: 154 S.W. 1130,248 Mo. 708
• Parties: STATE v. SYKES.
• Court: Missouri Supreme Court

154 S.W. 1130

248 Mo. 708

STATE v. SYKES.

Supreme Court of Missouri, Division No. 2.

March 18, 1913.

1. CRIMINAL LAW (§ 1038) — APPEAL — PRESENTATION BELOW — CONSTRUCTION ON ALIBI.

Failure to instruct on alibi was not reversible error, where the trial court's attention was not called to the propriety of such instruction at the trial, or in the motion for a new trial.

2. CRIMINAL LAW (§ 789) — INSTRUCTIONS — REASONABLE DOUBT.

The court should not give an instruction defining reasonable doubt.

3. CRIMINAL LAW (§ 1172) — APPEAL — HARMLESS ERROR — INSTRUCTION ON REASONABLE DOUBT.

It is not reversible error either to give or to refuse an instruction defining reasonable doubt, though such definition should not be given.

4. CRIMINAL LAW (§ 789) — INSTRUCTIONS — REASONABLE DOUBT.

Accused requested an instruction that guilt must be established beyond a reasonable doubt, and that proof beyond a reasonable doubt was such as would produce an abiding conviction in the mind to a moral certainty that the fact existed, and that a balance of proof was not sufficient, and that a juror should not condemn unless the evidence excluded from his mind all reasonable doubt unless so convinced by the evidence of guilt that a prudent man would feel safe to act upon the conviction in matters of the highest concern and importance to his own dearest personal interest. Held, that the request was properly refused.

5. WITNESSES (§ 40) — QUALIFICATIONS — AGENT.

It was not error as a matter of law to admit evidence of a prosecutrix, who was nine years of age, on the ground that she was too young, even though her evidence showed dullness.

6. CRIMINAL LAW (§ 829) — INSTRUCTIONS — REQUESTS.

The court instructed in a rape case that the mere fact that prosecutrix was in a physical condition, indicating that she had been criminally assaulted, was not itself sufficient to warrant a finding that such condition was the

result of an assault upon her by accused, that the burden of proof that the assault was by accused was upon the state, and that such proof must be made to the jury's satisfaction beyond a reasonable doubt. Accused requested a charge, which was refused, in substantially identical language, with the addition that the jury was bound to presume that prosecutrix's condition was from other cause, no matter whether the evidence shows what the cause was or not. Held, that the construction given fully protected accused's rights, so that the requested charge was properly refused.

7. CRIMINAL LAW (§ 814) — RAPE — INSTRUCTIONS — ATTEMPT.

Where the state's evidence showed the actual commission of the crime of rape, a requested instruction upon attempt to rape was properly refused.

Appeal from St. Louis Circuit Court; G. A. Wurdeman, Judge.

Sidney Sykes was convicted of rape, and appeals. Affirmed.

Defendant was convicted of raping Rita Washington, a girl nine years old, and was sentenced to 20 years in the penitentiary. Both parties are negroes. The child lived in St. Louis, but spent the summer with her grandparents, Richard Lewis and wife, at Florissant. The Lewis home had two rooms on the ground floor and one upstairs. Lewis had three sons, two of whom slept at home and worked around in the vicinity. A boy, Richard Jones, seven years old, was staying there. Lewis and the defendant had been cutting corn, working in the same field. Both testified that the defendant quit cutting corn because he was not able to continue doing so. Lewis did not state what defendant's ailment was. Defendant said he quit because the cutting made his arm sore. On September 14, 1910, Lewis and his wife left home early, he to cut corn, and she to wash at the house of a family in the vicinity. Lewis testified that he told the defendant to stay at home and take care of the children. Defendant on the stand denied that statement.

Defendant testified that a few minutes after Lewis and wife left he got breakfast and left, and that the two children were the only ones left at home. He testified that he went to Florissant, and spent the whole day with John Pope in the shed near a saloon, canning beer, playing cards, and shooting craps, occasionally going into the saloon for beer. He stated on the stand that he went back to Lewis' about 6:30 or 7 o'clock, and that Lewis was then at home. The stenographer's notes of his evidence on a previous trial were read in evidence, showing that he said on the former trial that he left the saloon about 3:30 in the afternoon.

The prosecutrix testified to facts indicating that defendant ravished her forcibly and against her will. She was not able to tell at what time in the day it occurred. She said nothing to any one until about September 24th, when it developed that she was horribly afflicted with gonorrhea, as shown by the evidence of the physician who examined her and of others. She then told that the defendant had mistreated her.

Defendant continued to sleep at Lewis' until he was arrested. On the first trial defendant was convicted, but the verdict was set aside for some error in the proceedings. Defendant testified that he left the saloon in the evening in company with John Pope, John Lewis, Bud Cordell, and Tucker Green. None of them testified. There was no evidence as to whether the defendant had a venereal disease.

The boy, Richard Jones, corroborated the prosecutrix as to the commission of the offense. Objection was made at the trial to allowing the prosecutrix and Richard Jones to testify, for the reason that they were too young. The objection was overruled.

The mother of the prosecutrix was present at the trial, but was not put on the witness stand by the state, nor were the three uncles of prosecutrix. The grandmother was dead at the time of the trial. The court did not instruct on the subject of an alibi; but, with that exception, it instructed on all the law of the case, including the subjects of the presumption of innocence, reasonable doubt, and good character. By an instruction "reasonable doubt" was defined as follows: "`Reasonable doubt' as used in these instructions, to entitle the defendant to an acquittal on that ground, means a substantial doubt arising in your minds upon careful consideration of all the facts and circumstances proven in the case, and not a mere possibility of the defendant's innocence." The court also gave this instruction: "The mere fact that the said Rita Washington was in...