State v. Topalovacki
| Decision Date | 03 June 1919 |
| Docket Number | No. 21320.,21320. |
| Citation | 213 S.W. 104 |
| Parties | STATE v. TOPALOVACKI. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.
Lyuca Topalovacki was convicted of statutory rape, and appeals. Affirmed.
Frank W. McAllister, Atty. Gen., and Henry B. Hunt, Asst. Atty. Gen., for the State.
The appeal is from a judgment wherein the defendant was convicted of statutory rape. The offense was committed on the 8th day of May, 1916, and the victim of the assault was one Marie Mayers, a girl 12 years of age.
Marie Mayers lived at 2767 South Seventh street in the city of St. Louis. On the day mentioned, instead of going to school, she played truant. She visited a friend named Stella Sulya, also a truant, living at 330 Victor street. The home of the Sulya girl consisted of two or three rooms, where she lived with her parents, who kept boarders in that limited space. On that day all the family were away from home except Stella. The defendant, who was 28 years of age, was a boarder there. He lay on a bed in the house, undressed, and probably had been sleeping. He explained at the trial that he had been working the night before, and had come in and gone to bed about 6 o'clock in the morning. During that forenoon the offense was committed while the two girls were present in the house. Further details of the crime are unnecessary in considering the questions raised by the record.
A police officer, making a sanitary inspection on that day, found the two girls, with another girl, getting beer in the neighborhood of the Sulya place, and later in the day Marie made complaint to him of the assault upon her. The two girls and the other girl were later taken to Dr. Cook for examination. Other evidence was offered of examination to show that the outrage had been committed upon Marie Mayers.
I. There were many objections to the introduction of testimony. In all of them except those considered below, no exception was saved, there was no ruling of the court, or the objection was too general to apprise the trial court of why the evidence was considered incompetent.
II. When the defendant was arrested he was confronted with Marie Mayers, and an officer was asked to state the conversation that took place between them. The witness then stated that the girl charged the defendant with having committed the crime in the manner which she described, and he denied it. A motion was made to strike out that evidence; motion overruled, but no exception saved. Defendant's counsel then moved the court to discharge the jury on the ground that improper evidence had been introduced. The court overruled the motion, and the defendant excepted. This ruling is assigned as error.
Instead of excepting to the ruling of the trial court in refusing to strike out the evidence, the defendant's counsel only saved exception to action of the court in overruling his motion to discharge the jury. There was no ground for discharging the jury. Whether circumstances arise which would require a discharge of the jury before the trial is completed is largely within the discretion of the trial court. Hamburger v. Rinkel, 164 Mo. 398, 64 S. W. 104.
III. Dr. Cook, who examined the girls, was not introduced as a witness for the state; evidence was offered for the purpose of showing that effort was made to subpoena him, but that he could not be produced because he had been attached to the medical department of the United States army. Objection was made to the introduction of this evidence, and exceptions saved to the overruling of the objection. Dr. Cook was an important witness. His absence unexplained would give rise to an inference that his testimony would be damaging to the state's case. Kame v. Railroad, 254 Mo. loc. cit. 194, 162 S. W. 240. Therefore it was entirely competent and proper to show what efforts were made by the state to secure his attendance.
IV. The defendant...
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