State v. Taylor

• Decision Date: 13 June 1893
• Citation: 22 S.W. 806
• Parties: STATE v. TAYLOR.
• Court: Missouri Supreme Court

22 S.W. 806

STATE v. TAYLOR.

Supreme Court of Missouri, Division No. 2.

June 13, 1893.

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

1. In a criminal prosecution a witness may be asked whether he has been convicted of a crime, to discredit his testimony. State v. Miller, 13 S. W. Rep. 832, 1051, 100 Mo. 606, followed.

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. An instruction to find defendant not guilty if, at the time the offense was committed, he was at a place other than where it was committed, is erroneous, since the law does not require his absence to be established, but he is entitled to an acquittal if there is a reasonable doubt that he was present.

Appeal from criminal court, Jackson county; John W. Wofford, Judge.

Harvey Taylor was convicted of rape, and appeals. Reversed.

Scott Ashton and Jos. S. Brooks, for appellant. Atty. Gen. Morton Jourdan and M. K. Brown, for the State.

GANTT, P. J.

The defendant, a negro man, was indicted in the criminal court of Jackson county for rape upon Lulie Butcher, a white girl about the age of 16, on the night of September 25, 1891. The defendant has been three times convicted of this offense by juries of Jackson county, and has been granted two new trials from the trial courts on account of technical errors. On the first trial, before Judge White, at the January term, 1892, the defendant was convicted, and his punishment assessed by the jury at 12 years in the state penitentiary. From this conviction he obtained a new trial solely because the trial court (overlooking the statutes, and the rulings of this court thereon, that rape is a capital offense) allowed the jury to separate during the intermissions of court, and before the case was finally closed and submitted to them. At a second trial at the April term, 1892, before Judge Sloan, of the seventh judicial circuit, sitting as special judge, the defendant was again convicted, and his punishment assessed by the jury at 15 years' imprisonment in the state penitentiary. From this second conviction the defendant again obtained a new trial, solely because, after the case was finally closed, and the jury had retired to deliberate, one of their number jumped from the jury room, and escaped from the charge of the marshal, and was gone from his fellows for several hours before returning. Defendant was again tried for the third time, and a third time convicted, at the January term, 1893, before Judge Wofford, the present regular judge of the Jackson county criminal court, and his punishment assessed by the jury at 15 years in the state penitentiary. To escape the consequences of this third conviction the defendant, in due time, filed his motion for a new trial, which was overruled by the trial court, and defendant brings his case here by appeal.

The testimony on the part of the state, if credited, as it was, was amply sufficient to sustain the verdict. It shows, in brief, that on the night of September 25, 1891, Lulie Butcher, a young girl, — 16 years old, — was returning home from a dance with a young man, Ed Copeland, about her age. The girl lived in the southern part of Kansas City. When they started home the street cars had ceased running for the night, and they were compelled to walk. According to their evidence, defendant passed them on their way home. When they reached a point on Grand avenue between Twenty-Sixth and Twenty-Seventh streets, at a lonely and deserted spot near the Union Cemetery, the defendant stepped out of his hiding place, presented a pistol at the head of young Copeland, who was entirely unarmed, and compelled him to throw up his hands. The defendant then searched his pockets. He then tied Copeland's hands behind his back, and compelled him and the prosecutrix, Miss Butcher, to leave the road, and go down into a ravine or depression off of, but near, the road. Then he either threw Copeland down, or made him lie down on his face, and compelled the girl also to lie down, when he committed the rape upon her. She says, frankly, she made no outcry or resistance, because she was afraid to do so. The defendant was shown to be a negro man, six feet in stature. After the commission of the crime he permitted them to return home. The girl reached home about 1 o'clock. She at once told her mother, and on this complaint, the next day, defendant was arrested, and identified by both the girl 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 of the bridge on the Belt Line, near the Kansas state line, inquiring what he was doing out so late that night. After a moment's conversation, and without warning, 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 at a pool room of another negro, on Nineteenth and Walnut streets, and he produced several witnesses of his own race, who corroborated his story. He assigned 20 grounds for new trial, many of which he does not press here. The errors assigned in this court will be considered in the reverse order.

1. There is no merit in the claim that the verdict is contrary to the evidence. The evidence was, on the contrary, strong, cogent, and convincing.

2. Counsel for defendant proposed to the state's witness Miller this question: "After this thing occurred, were you not arrested for stealing billiard balls from Ballinger's saloon, and sent to jail?" On the state's objection it was ruled the witness need not answer. The defendant was entitled to have this question answered. We are aware that it was ruled otherwise in State v. Douglass, 81 Mo. 231; but since then, in State v. Miller, 100 Mo. 606, 13 S. W. Rep. 832, 1051, the inquiry was held proper by the same learned judge who prepared the opinion in the Douglas Case. The latter ruling is most clearly in harmony with the modern tendency both in this country and in England. Whart. Crim. Ev. § 474; Steph. Dig. Ev. art. 129.

3. When the witness Copeland was on the stand the prosecuting attorney asked him if the defendant got anything from him, and he answered, "He got ten cents." There was no error in permitting this evidence. It was clearly a part of the res gestae, and in such a case it is no less competent because it may show defendant was guilty of robbery as well as rape. State v. Underwood, 75 Mo. 230; State v. Greenwade, 72 Mo. 298.

4. There is nothing in the eighth assignment. The witness answered the question without hesitation, and the court very properly refused, under these circumstances, to require her to answer whether she had told the truth on a former occasion. It is only when a witness is contumacious that such a cross-examination is ever proper. In this case there was no reason for such a course.

5. The court did not err in refusing to instruct the jury that in arriving...