State v. Thomas

• Decision Date: 31 December 1927
• Docket Number: 28258
• Citation: 1 S.W.2d 157,318 Mo. 843
• Parties: The State v. John F. Thomas, Appellant
• Court: Missouri Supreme Court

1 S.W.2d 157

318 Mo. 843

The State v. John F. Thomas, Appellant

No. 28258

Supreme Court of Missouri

December 31, 1927

Appeal from Monroe Circuit Court; Hon. Charles T. Hays Judge.

Affirmed.

J H. Whitecotton and Meriwether & Meriwether for appellant.

(1) It was error to permit prosecuting witness, over the objection of defendant, to testify to alleged sexual intercourse she had with Harold Henderson on April 27, 1925, and subsequent to the alleged act of intercourse for which this defendant was tried. State v. Polmberg, 199 Mo. 242; State v. Harris, 283 Mo. 99; State v. Johnson, 225 S.W. 964. (2) The trial court permitted plaintiff, over defendant's objection, to offer in evidence and read to the jury the entire transcript of defendant's testimony given by him at a former trial. It was unsigned and not identified by the stenographer, and was received and read in evidence (in full) as a part of plaintiff's case in chief, and prior to the time of defendant being called as a witness. The court overruled defendant's motion to strike out same. This was error. (3) The trial court permitted Dr Dearborn, over the objection of defendant, to testify on behalf of plaintiff to the effect that E. R. Campbell, who was alleged to have been a prospective witness for defendant, was mentally incompetent and otherwise unreliable and was referred to as an associate counsel for defendant. Campbell did not testify. It was an improper method, even if Campbell had testified. This was a prejudicial error. (4) The trial court committed error in permitting Judge Barnes, in his closing argument for the State, to appeal to the passion and prejudice of the jurors. In referring to the statement of facts by the prosecuting witness, he said, "I believe it as firmly as I believe the Lord's Prayer." He referred to the "animal nature" of John Thomas. He stated to the jury, "Yes, he is guilty, as guilty as it is possible for the English language to describe." He referred to Goldie Carpenter, one of defendant's witnesses: "Why they talk about Goldie Carpenter, I am surprised that you mention her, why Great God Almighty I would have avoided it, you men heard her and saw her demeanor on the stand. I would not believe a word she said if a rope were around my neck and I knew if I did not believe her that I would be hung I would not believe it, I don't believe the truth is in her bones." The court committed error in not discharging the jury as requested by defendant's attorney. State v. Cole, 252 S.W. 701; State v. Goodwin, 217 S.W. 267; State v. Thompson, 238 S.W. 117; State v. Webb, 254 Mo. 414; State v. Hess, 240 Mo. 147; State v. Phillips, 233 Mo. 299; State v. Clapper, 203 Mo. 549; State v. Fisher, 124 Mo. 460; State v. Young, 99 Mo. 666; State v. Jackson, 95 Mo. 623; Thompson on Trials, 972. (5) The evidence disclosed by the entire record was insufficient to justify or support the verdict. It was based solely upon the uncorroborated testimony of the prosecuting witness, whose two statements under oath are in serious conflict on the material and important facts of the case. And she was otherwise contradicted by other witnesses and contradicted by the unreasonableness of her statement. The verdict should not be permitted to stand and defendant should be discharged. State v. Guye, 299 Mo. 348; State v. Brown, 209 Mo. 413; State v. Goodale, 210 Mo. 275; State v. Tevis, 234 Mo. 276; State v. Donnington, 246 Mo. 343; State v. Johnson, 225 S.W. 964; State v. Wheaton, 221 S.W. 28.

North T. Gentry, Attorney-General, and A. B. Lovan, Assistant Attorney-General, for respondent.

(1) The appeal was granted on the 29th day of May, 1926; the transcript of the record and bill of exceptions were filed on the 31st day of May, 1927, The statute relating to appeals ought to be strictly enforced in this case, and appellant asks the court to dismiss the appeal for the reason that such appeal was not perfected within twelve months. Sec. 4107, R. S. 1919; State v. Fleetwood, 280 S.W. 703; State v. Short, 250 Mo. 334; State v. Cantrell, 279 Mo. 572. While it is true that there may be facts and circumstances which would furnish grounds for overruling a motion to dismiss an appeal, when the record shows such appeal was not perfected within twelve months the burden is on the appellant to show such facts and circumstances. State v. Short, 250 Mo. 331; State v. Cantrell, 279 Mo. 569; State v. Fleetwood, 280 S.W. 703; State v. Halliday, 311 Mo. 473; State v. Chilton, 199 Mo.App. 222. (2) The twelfth assignment in the motion for a new trial is: "Because the court erred in admitting, over the objections of defendant, evidence as to sexual intercourse on April 27, 1925, between prosecuting witness and Harold Henderson, over the objections of the defendant." It is the law that subsequent acts between the same parties cannot be shown. The reason is that it would be proving a separate and distinct crime against the defendant. Evidence of prior acts is admissible "to show the disposition and inclination of the prosecutrix and defendant to commit the act alleged in the information." State v. Cooper, 271 S.W. 474. The rule of law governing the admission of testimony showing prior acts, and rejection of testimony showing subsequent acts has nothing to do with the point raised here by appellant, because the second act of intercourse was not with the defendant. Under circumstances similar to this, where another person other than the defendant had intercourse with the prosecutrix on the same occasion, evidence of such acts is admissible. State v. Cunningham, 100 Mo. 382; State v. Bigley, 247 S.W. 169; State v. Catron, 296 S.W. 151. (3) The testimony of Doctor Dearborn with reference to E. R. Campbell was offered by the State out of time presumably for the reason that Doctor Dearborn lived out of the State and giving his testimony then would enable him to return home and not have to wait over until Campbell should testify. The court admitted the testimony with the understanding that it would be stricken out if Campbell did not testify. It was in the discretion of the court to admit the testimony out of time with the understanding that it would be stricken out if the witness Campbell did not testify. State v. Murphy, 118 Mo. 15; State v. Ferguson, 278 Mo. 135. And, further, the whole matter as presented before the jury was not prejudicial. State v. Mulconry, 270 S.W. 377.

OPINION

Blair, J.

Appellant was tried in the Circuit Court of Monroe County for the crime of having carnal knowledge of a female child under the age of consent. [Sec. 3247, R. S. 1919, as amended by Laws of 1921, p. 284a.] The first trial resulted in the conviction of appellant and a sentence of two years in the penitentiary. A new trial was granted and upon the second trial appellant was again found guilty and his punishment was then assessed by the jury at imprisonment in the State Penitentiary for a term of four years. After moving unsuccessfully for a third trial, appellant was duly sentenced upon the verdict and thereafter appealed to this court.

The first matter for consideration is the motion to dismiss the appeal, which was taken with the case. The motion is based upon the admitted facts that the appeal was granted May 29, 1926, and that the transcript of the record and bill of exceptions was not filed in this court until May 31, 1927. This constituted a failure to perfect the appeal within twelve months. The motion to dismiss the appeal should be sustained, unless we conclude that appellant has shown good cause for his default. [Sec. 4107, R. S. 1919.]

Appellant has filed suggestions supported by affidavits opposing the motion to dismiss the appeal. The facts stated therein, which are wholly uncontradicted, are as follows: The appeal was granted May 29, 1926. On May 27, 1927, the Clerk of the Monroe County Circuit Court forwarded by registered mail a package containing the transcript of the record and bill of exceptions, properly addressed to the clerk of this court. A letter of the same date, addressed to the clerk and containing the docket fee, was mailed with the package containing the transcript. Said letter was received by our clerk May 28, 1927. Both the letter and the package were put on the Wabash train which left Paris, Missouri, at 4:22, P. M., May 27, 1927, and were due to reach Jefferson City on May 28, 1927.

May 28th was Saturday. Monday, May 30th, was Decoration Day and a holiday. The transcript was marked filed May 31, 1927. Appellant makes no attempt to account for the failure of the transcript to reach our clerk before May 31, 1927. We are not advised concerning the course of business of the United States post office in handling registered mail, but are confident that the delay in filing the transcript in this court was caused through a combination of the rules of the post office and successive occurrence of a Sunday and a holiday. What more appellant could have done that he did not do is not apparent. Caution may have dictated mailing the transcript a day or two earlier. Such mailing would undoubtedly have perfected the appeal within twelve months. However, we think a mere statement of the undisputed facts demonstrates good cause on appellant's part for failure so to perfect his appeal. The motion to dismiss the appeal is overruled.

The evidence offered on the part of the State tended to prove the following facts: Shortly after noon on April 27, 1925, Helen Bradley, the prosecutrix, rode from Monroe City with appellant and one Harold Henderson in a Ford roadster of the latter to Nolen school house about three miles south of that city. Prosecutrix there had sexual intercourse with appellant and shortly afterwards with Henderson. She testified to the occurrence of similar relations with appel...