State v. Turner

• Decision Date: 05 June 1925
• Docket Number: 26078
• Citation: 274 S.W. 35
• Parties: STATE v. TURNER
• Court: Missouri Supreme Court

274 S.W. 35

STATE v. TURNER

No. 26078

Supreme Court of Missouri, Second Division

June 5, 1925

Robert W. Otto, Atty. Gen., and Wm. L. Vandeventer, Asst. Atty Gen., for the State.

OPINION

Statement.

RAILEY, C.

On June 22, 1923, the prosecuting attorney of St. Francois county, Mo., filed in the circuit court of said county a verified information, which, without caption and verification, reads as follows:

'Now at this day comes Philip S. Cole, Jr., prosecuting attorney within and for the county of St. Francois in the state of Missouri, on behalf of the state of Missouri, upon his oath of office, and upon his knowledge, information, and belief and informs the court that one Frank Turner, late of the county of St. Francois in the state of Missouri, on the -- day of June, 1923, at and in the county of St. Francois and state of Missouri, did then and there unlawfully, willfully, and feloniously in and upon one Fay Turner, a female child under the age of 12 years, to wit, of the age of 8 years, unlawfully, willfully, and feloniously, did make an assault, and her, the said Fay Turner, then and there unlawfully, willfully, and feloniously did carnally know and abuse, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.'

On November 19, 1923, defendant waived formal arraignment, and entered a plea of not guilty. On the date last named the trial of the case commenced before a jury, and on the 21st of said month a verdict was returned as follows:

'We, the jury, find the defendant, Frank Turner, guilty of rape, as he stands charged in the information, and we find that at the time of the commission of said offense the witness Helen Fay Turner was under the age of 12 years, and we assess the punishment of the defendant, Frank Turner, at imprisonment in the penitentiary for a term of 10 years.

'John T. Burks, Foreman.'

Defendant in due time filed motions for a new trial and in arrest of judgment. Both motions were overruled. On December 15, 1923, allocution was granted defendant, and on the same day judgment was rendered and sentence pronounced in conformity to the terms of the verdict aforesaid. Appellant was duly granted an appeal to this court.

The evidence of the state tends to show that Fay Turner, an adopted child of defendant, while 8 years of age, was living with defendant and his wife in St. Francois county, Mo., that on or about June 4, 1923, said defendant had sexual intercourse with said Fay Turner, and that prior thereto he had had sexual intercourse with her. The testimony of physicians, on the part of the state, who examined Fay Turner about June 6, 1923, tended to show that she had had sexual intercourse frequently, and that her form and features were abnormally developed because of that fact.

The defendant denied such relations, and physicians testified in his behalf that the prosecuting witness had not had sexual intercourse with any one, and that under the statement as detailed by her it would have been impossible for it to have occurred.

Counsel for appellant, at the trial, challenged the competency of Fay Turner to testify as a witness, on the alleged ground that she did not realize the sanctity of an oath. After hearing evidence without the presence of the jury, the court held that she was competent to testify. She was examined on the same subject in the presence of the jury.

The instructions given and refused, as well as the rulings of the court during the progress of the trial, will be considered later.

Opinion.

I. The information is heretofore set out, and its sufficiency, although challenged by the motion in arrest of judgment, meets with the requirements of the law, as to both form and substance. State v. Belknap (Mo. Sup.) 221 S.W. 39; State v. Houston (Mo. Sup.) 263 S.W. 219; State v. Cox (Mo. Sup.) 263 S.W. loc. cit. 216; State v. Nevitt, 270 S.W. 337, decided by Division 2 on December 31, 1924.

II. The state produced substantial testimony relating to defendant's guilt, and hence the demurrer to the evidence at the conclusion of the whole case was properly overruled. State v. Belknap (Mo. Sup.) 221 S.W. 39; State v. Houston (Mo. Sup.) 263 S.W. 219; State v. Cox (Mo. Sup.) 263 S.W. loc. cit. 216; State v. Nevitt, 270 S.W. 337, decided December 31, 1924, by Division 2.

III. The prosecutrix, although but 8 years of age at the date of trial, was fully examined outside the presence of the jury, and reexamined in the presence of the jury, as to her competency to testify as a witness. Her testimony is set out in the transcript, and we are of the opinion that the court committed no error in permitting her to testify. State v. Nevitt, 270 S.W. 337, decided by Division 2, December 31, 1924; State v. Cox (Mo. Sup.) 263 S.W. 216; State v. Houston (Mo. Sup.) 263

S.W. loc. cit. 219; State v. Belknap (Mo. Sup.) 221 S.W. 39.

IV. Statements made by defendant while under arrest were properly admitted in evidence by the trial court. State v. Jones, 171 Mo. loc. cit. 406, 71 S.W. 680, 94 Am. St. Rep. 786; State v. Spaugh, 200 Mo. 571, 98 S.W. 55; State v. Armstrong, 203 Mo. 554, 102 S.W. 503; State v. Daly, 210 Mo. 664, 109 S.W. 53; State v. Prunty, 276 Mo. 359, 208 S.W. 91.

V. Several physicians examined the prosecutrix in a short time after the alleged assault, and, after otherwise qualifying themselves to testify as experts, they were examined as such. The trial court committed no error in admitting their testimony as shown by the record. State v. Liolios, 285 Mo. 1, 225 S.W. 941; State v. Rose, 271 Mo. 17, 195 S.W. 1016.

VI. The court committed no error in refusing defendant's instruction numbered 7, relating to the competency of prosecutrix to testify as a witness in the case. State v. Belknap (Mo. Sup.) 221 S.W. loc. cit. 45; State v. Sykes, 248 Mo. 708, 154 S.W. 1130; Davenport v. Electric Co., 242 Mo. 111, 145 S.W. 454; State v Connors, 233 Mo. 348, 135 S.W. 444, Ann. Cas. 1912C, 28; State v. Jeffries, 210 Mo. loc. cit. 326, 109 S.W. 614. 14 Ann. Cas. 524. See, also, authorities heretofore cited.

VII. The court gave, over the objection of defendant, instruction 13, which reads as follows:

'The court instructs the jury that, if you believe and find from the evidence in this cause that the defendant, immediately or shortly after the time of the alleged assault, fled from the house where he was staying in the town of Flat River, county of St. Francois, and state of Missouri, for the purpose and with the intent to avoid arrest by the officers of the law and trial for such alleged assault, such flight should be considered by you, in...