State v. Thomas

• Decision Date: 04 October 1943
• Docket Number: 38550
• Citation: 174 S.W.2d 337,351 Mo. 804
• Parties: State v. Sherman Thomas, Appellant
• Court: Missouri Supreme Court

174 S.W.2d 337

351 Mo. 804

State v. Sherman Thomas, Appellant

No. 38550

Supreme Court of Missouri

October 4, 1943

Appeal from Laclede Circuit Court; Hon. William Edward Barton, Judge.

Reversed and remanded.

Charles Farrar and Phil M. Donnelly for appellant.

(1) The court erred in not discharging the juror Farrell Burns on the voir dire examination of the jurors when it was shown that said juror Burns was related to the husband of the prosecuting witness Gertrude Nyberg; Burns' sister married Nyberg's brother. Sec. 4057, R. S. 1939. (2) The court erred in not declaring a mistrial and discharging the jury when it was discovered that the juror Charlie Atkinson one of the regular jurors selected to try the case, and who was serving as a juror on the jury, was related to the defendant; a daughter of a first cousin of defendant was the wife of the juror Charlie Atkinson. Sec. 4057, Revised Statutes of Missouri 1939. (3) The court erred in overruling the defendant's demurrer, offered at the close of the whole case, said demurrer being lettered "B" in the series of refused instructions. To convict of assault with intent to rape, there must not only be proof of assault, but it must be shown accused intended to have intercourse with the female by force and against her will despite any resistance on part of the female. State v. Scholl, 130 Mo. 396; State v. Hayden, 141 Mo. 311; State v. Espenschied, 212 Mo. 215; State v. Fleming, 177 S.W. 299; State v. Goodale, 210 Mo. 275; State v. McChesney, 185 S.W. 197; State v Williams, 22 S.W.2d 649. (4) In a case where the prosecutrix is over the statutory age of consent, as in the case at bar, and the testimony of prosecutrix is uncorroborated and she fails to make complaint of the alleged assault within a reasonable time thereafter, and continued on friendly relations with the defendant for some time thereafter, it is error for the court to not instruct the jury to take those facts into consideration with all the other evidence in the case as to whether or not, in fact, an assault with intent to rape was committed. This court has held it to be reversible error to fail to so instruct the jury. State v. Wilson, 91 Mo. 410; State v Witten, 100 Mo. 525; State v. Patrick, 107 Mo. 147; State v. Boyd, 178 Mo. 2; Champagne v. Hamey, 189 Mo. 709; State v. Goodale, 210 Mo. 275; State v. Bowman, 213 S.W. 64; State v. Bigley, 247 S.W. 169; State v. Taylor, 8 S.W.2d 29; State v. King, 119 S.W.2d 277; State v. Palmer, 130 S.W.2d 599; State v. Richards, 163 S.W.2d 956. (5) The verdict of the jury is the result of prejudice on the part of the jury and is not based upon or supported by substantial evidence. It was based upon the uncorroborated and unsupported testimony of the prosecutrix. In view of the defendant's admissions that he and prosecutrix had been having sexual intercourse for two years before June 7th, and the fact that defendant had made prosecutrix the beneficiary in a life insurance policy, and also prosecutrix's own statements about her friendly relations with defendant after June 7th, such a verdict does not meet the tests of law required in such cases. No man ought to be incarcerated in the penitentiary upon such uncorroborated and unsupported testimony, which testimony in some instances was opposed to physical facts. Sec. 25, Art. II, Const. Missouri; State v. Scholl, 130 Mo. 396; State v. Hayden, 141 Mo. 311; State v. Espenschied, 212 Mo. 215; State v. Fleming, 177 S.W. 299; State v. Goodale, 210 Mo. 275; State v. McChesney, 185 S.W. 197; State v. Williams, 22 S.W.2d 649. (6) The court erred in giving State's Instruction 1, over the objections and exceptions of the defendant. Specific objections to said instruction are set out in paragraph 9 of defendant's motion for new trial and are hereby urged as assignments of error. State v. Scholl, 130 Mo. 396; State v. Hayden, 141 Mo. 311; State v. Espenschied, 212 Mo. 215; State v. Fleming, 177 S.W. 299; State v. Goodale, 210 Mo. 275; State v. McChesney, 185 S.W. 197; State v. Williams, 22 S.W.2d 649.

Roy McKittrick, Attorney General, and L. I. Morris, Assistant Attorney General, for respondent.

(1) The information is sufficient and charges assault with intent to rape. Sec. 4409, R. S. 1939; State v. Knoch, 14 S.W.2d 424; State v. White, 288 S.W. 18, 315 Mo. 1276; State v. Stephens, 199 Mo. 261, 97 S.W. 860; State v. Little, 67 Mo. 624; State v. Neal, 76 S.W. 958, 178 Mo. 63; State v. Payne, 92 S.W. 461, 194 Mo. 442; State v. Comer, 247 S.W. 179, 296 Mo. 1. (2) Assignments general in character will not be considered for review by this court. Sec. 4125, R. S. 1939; State v. Kennon, 123 S.W.2d 46; State v. Scott, 113 S.W. 1069, 214 Mo. 257; State v. Anno, 296 S.W. 825; State v. Dollarhide, 87 S.W.2d 156, 337 Mo. 962. (3) The evidence is sufficient to sustain a conviction for an assault with intent to rape. State v. Shroyer, 16 S.W. 286, 104 Mo. 441, 24 Am. St. Rep. 344; State v. Knoch, 14 S.W.2d 424; State v. Merricks, 18 S.W.2d 23; State v. Alcorn, 38 S.W. 548, 137 Mo. 121; State v. Dalton, 17 S.W. 700, 106 Mo. 463; State v. Pinkard, 318 Mo. 751, 300 S.W. 748. (4) Assignment that the court has failed to correctly instruct on all the law is insufficient. State v. Bagby, 93 S.W.2d 241, 338 Mo. 951; State v. Barr, 78 S.W.2d 104, 336 Mo. 300; State v. Copeland, 71 S.W.2d 746, 335 Mo. 140. (5) The verdict is responsive to the charge in the information and is in proper form and is not the result of passion and prejudice on the part of the jury. Sec. 4409, R. S. 1939; State v. Knoch, 14 S.W.2d 424; State v. Lovitt, 147 S.W. 484, 243 Mo. 510; State v. George, 214 Mo. 262, 113 S.W. 1116; State v. Alexander, 315 Mo. 199, 285 S.W. 984; State v. Bowers, 29 S.W.2d 58. (6) The court did not err in overruling defendant's motion for new trial in the form of a demurrer filed at the close of the State's case. State v. Barr, 78 S.W.2d 104, 336 Mo. 300; State v. Lebo, 98 S.W.2d 695, 339 Mo. 960; State v. Meadows, 51 S.W.2d 1033, 330 Mo. 1020; State v. Pinkard, 318 Mo. 751, 300 S.W. 748; State v. Jackson, 283 Mo. 18, 22 S.W. 746. (7) The court did not err in overruling defendant's motion for new trial in the form of a demurrer at the close of the whole case. State v. Bigley, 247 S.W. 169; State v. Myers, 44 S.W.2d 71; State v. Ring, 141 S.W.2d 57, 346 Mo. 290; State v. Hurlbut, 285 S.W. 469; State v. Creighton, 52 S.W.2d 556, 330 Mo. 1176. (8) No error was committed by the court in giving Instruction 1 for the State on assault with intent to commit rape, as same is an approved and proper form. State v. McCaskey, 16 S.W. 511, 104 Mo. 644; State v. Matthews, 10 S.W. 144, 98 Mo. 125; State v. Shaw, 220 S.W. 861; State v. Hoag, 134 S.W. 509, 232 Mo. 308; State v. Hicks, 3 S.W.2d 230, 319 Mo. 28. (9) Because on voir dire it was shown one juror was related to husband of prosecuting witness, there was no error committed as it did not deprive defendant of a panel of 24 jurors. State v. Carter, 131 S.W.2d 546, 345 Mo. 74; State v. Lewis, 20 S.W.2d 529, 323 Mo. 1070; 35 C. J., p. 398, sec. 447, p. 389, sec. 437; Rose v. Sheedy, 134 S.W.2d 18, 345 Mo. 610. (10) Before trial a member of the jury was objected to as being related to defendant; the overruling of defendant's objection that juror was incompetent was not error. State v. Yowell, 55 S.W.2d 991, 331 Mo. 716; State v. Miller, 56 S.W.2d 92, 331 Mo. 675; State v. Lloyd, 87 S.W.2d 418; State v. Stewart, 296 Mo. 12, 246 S.W. 936; State v. Carter, 131 S.W.2d 546, 345 Mo. 74; Rose v. Sheedy, 134 S.W.2d 18, 345 Mo. 610; 2 C. J., p. 378; State v. Lewis, 20 S.W.2d 529, 323 Mo. 1070. (11) Failure to give defendant's Instruction C was not error fon same was covered by State's instructions. State v. Benson, 8 S.W.2d 49. (12) Failure to give defendant's Instruction D was not error, for same was covered in State's instructions. State v. Benson, 8 S.W.2d 49.

OPINION

Ellison, J.

The appellant was convicted by a jury in the Laclede county circuit court of assault with intent to rape. His punishment was assessed at two years' imprisonment in the penitentiary. We take up in their order his briefed assignments of error, stating the facts applicable to each in the discussion thereof.

Appellant's first contention is that his challenge to the poll of Ferrell Burns, a member of the jury panel, should have been sustained under Sec. 4057, R. S. 1939, Mo. R. S. A., sec. 4057, because Burns stated in his voir dire examination that his sister was the wife of a brother of the prosecutrix' husband. In other words, he was a brother-in-law of a brother-in-law of the prosecutrix. The statute provides that in criminal prosecutions no person "of kin" to the "injured party" or to "the prosecutor or defendant" shall be competent to serve as a juror on the trial of the cause. The prosecutrix here was both the "prosecutor" (who signed the complaint) and the "injured party" (who was allegedly assaulted). She therefore came within the statutory designation.

But the statute does not specify how the prosecutrix and the juror must be related: whether by consanguinity or affinity. He was not related by consanguinity. Was he, by affinity? In State v. Carter, 345 Mo. 74, 77(3), 131 S.W.2d 546, 548(4), a female cousin of the juror's wife had married a brother of the defendant. The case ruled this did not constitute a relationship forbidden by the statute. The same ruling must be made here. A kinship by affinity -- arising through marriage -- exists only between each spouse and the blood relatives of the other spouse. ^[1] Here, juror Burns was not blood kin of the prosecutrix' husband, and therefore was not related to her by affinity. It results that he was not of kin to her at all, and the assignment must be overruled.

The next assignment raises a similar...