State v. Taylor

• Decision Date: 21 November 1893
• Citation: 24 S.W. 449,118 Mo. 153
• Parties: STATE v. TAYLOR.
• Court: Missouri Supreme Court

24 S.W. 449

118 Mo. 153

STATE v. TAYLOR.

Supreme Court of Missouri, Division No. 2.

November 21, 1893.

WITNESS — CREDIBILITY — RAPE — RES GESTÆ — EVIDENCE — ALIBI.

1. For the purpose of discrediting a witness he may be asked whether he has not been arrested and sent to jail for stealing, as, in such case, it is not necessary to produce the records.

2. On a prosecution for rape, the evidence for the state showed that defendant, at a lonely spot, in the nighttime, presented a pistol at the head of a young man who was accompanying the prosecuting witness, compelled both of them to leave the street, and raped the prosecutrix. Held, that evidence was admissible to show that defendant searched the pockets of the young man, and robbed him of his money, as this was a part of the res gestae.

3. Testimony by a police officer that he met defendant, on the night of the rape, in the vicinity where the crime was committed, just as defendant was about to cross a bridge leading into another state, and that on his attempting to halt defendant the latter fired a revolver at him, is competent, as showing an attempt to escape, though the officer knew nothing of the crime that had been committed.

4. Improper remarks of counsel, not made the subject of an exception, will not be considered on appeal.

5. On a trial for rape defendant relied on the defense of alibi. The jury was instructed to acquit if, at the time of the offense, defendant was at a place other than where it was committed. Held erroneous, as the burden was on the state to prove defendant's presence at the place of the offense, and the error was not cured by the general charge as to reasonable doubt.

6. Under Rev. St. 1889, § 4208, making it the duty of the court to instruct the jury on all questions of law arising in the case, where there is evidence in a criminal case tending to prove an alibi, an instruction on that subject must be given, whether requested by defendant or not.

On rehearing. Reversed.

For former report, see 22 S. W. 806.

The facts appear in the following statement by GANTT, P. J.:

The defendant, a negro man, was indicted in the criminal court of Jackson county for rape upon Lulu Butcher, a white girl, about 16 years old. He was convicted, and sentenced to the penitentiary for 15 years. The testimony tends to show that on the night of September 25, 1891, at Kansas City, Mo., Lulu Butcher, a young white girl of 16 years, was returning to her home, in the southern part of that city, from a dance. With her was a young man or boy, Ed. Copeland, of about the same age, who was acting as her escort. They were walking, the street cars having ceased to run for the night. When they reached a point on Grand avenue, between Twenty-Sixth and Twenty-Seventh streets, and near the Union Cemetery, a man, whom they afterwards identified as defendant, stepped out from the shadow on the roadside, and placed a pistol at the head of young Copeland, who was entirely unarmed, and compelled him to throw up his hands. He then proceeded to search his pockets. The robber then tied Copeland's hands behind his back, and forced him and Miss Butcher, under threats, to leave the road or street, and go down into a depression, on the side of, but near to, the road. Then he either threw Copeland down or compelled him to lie down. He ordered the girl to lie down, and then and there committed the rape. In her testimony she admits she made no outcry or resistance because she was afraid he would kill her if she did. On the part of defendant it was shown that a Mrs. Holmes resided on the lot adjoining the cemetery, and that there was gaslight in the vicinity. The dimensions of the cemetery are not given. The defendant was shown to be a man six feet in stature. After the crime was perpetrated, her assailant permitted Miss Butcher and young Copeland to return to her home, which she reached about 1 o'clock the next morning. She at once told her mother, and on this complaint the defendant was arrested the next day, and was identified by both Miss Butcher and Copeland. Two other witnesses, Doc. Miller and Police Officer Thomas, testified to seeing defendant in that part of the city later in the night, or early morning of Friday. The officer hailed him on the approach to the bridge on the Belt Line Railroad, near the Kansas state line, inquiring what he was doing out so late that night. After a moment's conversation, and without warning, the defendant fired his revolver at the officer, the ball passing through a portion of his clothing, and grazing his club and scabbard. The defendant relied upon an alibi. He testified that he spent all that night in the pool room of John Talbott; that De Wolf, a mechanic, was there repairing the tables, and that Talbott had employed him to assist about the place, and to remain there all night, because there were no locks upon the door; that Talbott left the money with him to pay De Wolf when he finished the job; that he remained, and did pay De Wolf. Talbott testified that when he left the room that night he left Taylor, the defendant, in charge, with money to pay De Wolf; that it was then between 12 and 1 o'clock. De Wolf fully corroborates Talbott as to the fact of defendant's presence in the pool room that night, and says he left defendant there when he finished the tables; that he thinks it must have been 2 o'clock, from the fact that the street cars stopped running at 12 o'clock, and he thinks they had been stopped at least two hours. This pool room was at the corner of Nineteenth and Walnut streets. If this evidence is to be credited, it shows a complete alibi, as it covers the time of the rape fully, and places defendant at a considerable distance from the place of its perpetration. The other facts, and the instructions complained of, will appear in the further discussion of the case.

GANTT, P. J., (after stating the facts.)

1. There was sufficient evidence to justify the verdict of the jury, if credited by them.

2. Counsel for defendant, in the cross-examination of the state's witness Miller, asked this question: "After this thing occurred, were you not arrested for stealing billiard balls from Borlander's saloon, and sent to jail?" On the objection of the prosecuting attorney, the court ruled the witness need not answer. The defendant was entitled to have the question answered. The evident purpose of the interrogatory was to discredit the witness. In such a case, the mere fact that it touched upon a conviction which must have been of record is not sufficient to exclude it. Wharton on Criminal Evidence, in section 474, states the rule as follows: "In a leading case, Lord Ellenborough, C. J., compelled a witness to answer whether he had not been confined for theft in jail, and, on the witness appealing to the court, said, `If you do not answer, I will send you there.' In this country there has been some hesitation in permitting a question the answer to which not merely imputes disgrace, but touches on matters of record; but the tendency now is, if the question be given for the purpose of honestly discrediting the witness, to require answer." Citing Real v. People, 42 N. Y. 270, Com. v. Bonner, 97 Mass. 587, and many other cases. This court, in State v. Miller, 100 Mo. 606, 13 S. W. 832, 1051, in an opinion by Sherwood, J., adopted the rule as stated by Wharton as follows: "Was error committed in refusing permission to the defendant to interrogate Mortimer as to whether he had not been in the penitentiary two or three times? In order successfully to ask and have answered such a question, it seems unnecessary to produce a record of conviction. Such record only has to be produced where it is proposed to show that the witness has been convicted of some crime, in which case the judgment of conviction is the only competent evidence. It is otherwise, however, where the question is asked the witness for the purpose of honestly discrediting him. Then the question is competent. This is the tendency of adjudication in this country. Whart. Crim. Ev. (9th Ed.) § 474, and cases cited; Chamberlain's Best, Ev. (Ed. 1893-94) p. 602, Amer. notes, 2; 1 Bish. Crim. Proc. § 1185." But it is insisted that, notwithstanding error was committed by the trial court in not permitting the witness to answer this question, still, inasmuch as the court permitted defendant to show in the subsequent examination of this witness that he was in the county jail, and had conversation with one Clark, a prisoner therein, that the error is cured, on the ground that, "although a competent question is at first excluded, still if, upon further examination, the party receives the full benefit of the excluded question, he has no cause of complaint." An examination of the record, however, will disclose that the court only permitted him to be asked, that "while in the jail, if he met a man by the name of Clark, a prisoner in the jail." To this he answered, "There was a man in jail by the name of Clark, but I don't remember his first name." He was also asked as to his conversations with Clark about defendant, but nowhere in his examination or elsewhere in the record is the query whether he was arrested "for stealing Borlander's billiard balls, and sent to jail" for that cause. For aught that appears to the contrary in his evidence, it might have been well argued that he was merely a visitor to the jail to see Clark. Merely being in a jail is quite a different thing from being sent to jail for theft. The rulings positively excluded the evidence which tended to discredit the witness, and the subsequent examination did not supply it, and did not cure it.

When it is considered that this witness is the principal one by whom the state identified the defendant in the immediate vicinity of the crime at 2 o'clock that night, it can readily be seen how important to defendant was the right of a searching cross-examination, and any evidence that might discredit him. The crucial test of any...