State v. Vickers

• Decision Date: 10 December 1907
• Parties: STATE v. VICKERS.
• Court: Missouri Supreme Court

106 S.W. 999

209 Mo. 12

STATE v. VICKERS.

Supreme Court of Missouri, Division No. 2.

December 10, 1907.

1. CRIMINAL LAW—VENUE—PREJUDICE OF INHABITANTS.

Evidence in support of an application for change of venue for prejudice of the inhabitants of the county held insufficient to establish such a prejudice as would prevent defendant from obtaining a fair trial in that county.

2. SAME—EVIDENCE.

On an issue of prejudice of the inhabitants of a county against accused in support of an application for change of venue, a witness, asked to state the purport of a conversation he had heard with reference to defendant's guilt or innocence, should have been permitted to testify that "the sentiment was against the man" and that the people were highly incensed at the time.

3. SAME—APPEAL—HARMLESS ERROR.

Where, on an application for a change of venue, a witness was permitted to testify that his neighbors said accused was a bad man and came from the West to the county, and was a member of a gang of desperadoes, accused was not prejudiced by the striking of other answers that the people were highly incensed at the time and that the sentiment was against him.

4. SAME—OPINION.

On an application for a change of venue because of prejudice of the inhabitants, the court should not have permitted witnesses to testify that defendant could have a fair trial in the county where the offense was committed.

5. SAME—APPEAL—PREJUDICE.

Accused was not prejudiced by evidence of witnesses on an application for change of venue that accused could have a fair trial in the county where the offense was committed; such evidence having been elicited only after the witnesses had stated all their knowledge of accused and of the sentiment of the people in their respective neighborhoods.

6. SAME—APPEAL—REVIEW.

The trial of an issue as to prejudice of the inhabitants of the county against accused on an application for change of venue being to the judge of the court, the Supreme Court is bound by the circuit court's finding, unless manifest error occurred.

7. SAME—DISCRETION.

The granting of an application for change of venue for prejudice of the inhabitants of the county against accused being a matter of discretion, the court's ruling will not be reversed on appeal, in the absence of a showing that the court's discretion was abused.

8. JURY—COMPETENCY OF JURORS—OPINIONS — NEWSPAPER REPORTS.

Rev. St. 1899, § 2616 [Ann. St. 1906, p. 1550], declares that it shall be a good cause of challenge for a juror if he has formed or delivered an opinion on the issue or any material fact to be tried; but if such opinion is founded only on rumor or newspaper reports, and is not such as to prejudice or bias the juror's mind, he may be sworn. Held, that where a juror, having testified that he had no acquaintance with defendant, was not related to any of the witnesses, and had no bias or prejudice against defendant, also stated that he had heard his neighbors speak of accused and had read about the alleged offense in the newspapers, from which he had derived a prejudice against accused, but that his impression or opinion was formed on rumor and newspaper reports, he never having heard any witness speak about accused, he was competent.

9. SAME—DRAWING JURY—TERRITORIAL LIMITS—JURISDICTION OF COURTS.

Laws 1897, p. 61, establishing terms of the Lewis county circuit court at Canton, in such county, did not restrict the court's jurisdiction over the entire county, nor prevent the summoning of jurors from the county at large to try accused at the county seat for an offense committed within the county outside of the Canton district.

10. CRIMINAL LAW—TRIAL—ORDER OF PROOF.

Where a witness testified to talking over the telephone with defendant after the commission of the alleged offense, and that he recognized defendant's voice and knew that it was defendant that was talking at the time, the court did not err in previously permitting another to testify to what the former witness said through the telephone in such conversation, as the order in which any testimony should be admitted rests solely in the discretion of the trial court.

11. WITNESSES—REDIRECT EXAMINATION.

Where, in a prosecution for rape, defendant cross-examined prosecutrix's mother at length concerning the parties to whom she had recited prosecutrix's complaint, and concerning a conversation with defendant regarding his action, and she had testified that she did not tell her husband of prosecutrix's complaint until after dusk on the day the offense was committed, she was properly allowed to testify on redirect examination that she delayed telling her husband because prosecutrix had stated that defendant would kill her husband.

12. CRIMINAL LAW—APPEAL—REVIEW OF EVIDENCE—OBJECTIONS.

An objection that a question asked of a witness on redirect examination was incompetent and immaterial was insufficient to present the objection on appeal that it was not proper redirect examination.

13. SAME—INSTRUCTIONS—COMMENT ON EVIDENCE.

Where, in a prosecution for rape, evidence of defendant's conduct after the offense indicated guilt, an instruction that the manner and demeanor of the defendant, when accused of crime, as well as his silence under such circumstances, might be considered together with all the other facts and circumstances in evidence, while stating a correct abstract proposition, was

objectionable as violating the rule forbidding the court to comment on the evidence.

14. SAME—DEFINITENESS—ASSUMED FACTS.

An instruction that false statements made by defendant when accused of the crime about matters which were likely to lead to his detection, might be considered by the jury in passing upon defendant's guilt or innocence was objectionable, as indefinite and as assuming that false statements had been made by accused.

15. SAME—PREJUDICE.

Where, in a prosecution for rape, the evidence left no reasonable doubt of defendant's guilt, a conviction will not be reversed because the court gave two instructions authorizing the jury to consider defendant's demeanor and false statements when accused of the crime, which were erroneous, in that one of them constituted a comment on the evidence, while the other assumed that false statements had been made.

Appeal from Circuit Court, Lewis County; Chas. D. Stewart, Judge.

James W. Vickers was convicted of rape, and he appeals. Affirmed.

Silver & Brown, for appellant. The Attorney General and N. T. Gentry, for the State.

GANTT, J.

This is an appeal from the circuit court of Lewis county. On June 16, 1906, the prosecuting attorney of Lewis county filed an information, duly verified, charging the defendant with the rape of Reba Burnett, a female child under the age of 14 years, at the said county of Lewis, on or about the 7th day of June, 1906. The defendant was arrested, and at the September term, 1906, of the said court, filed an application for a change of venue from said county on the ground that he could not have a fair and impartial trial, for the reason that the minds of the inhabitants of said county of Lewis were prejudiced against him. This application was supported by two citizens of said county, and due notice of the same was served on the prosecuting attorney. Upon a hearing of the said application it was refused, and the defendant saved his exception to the action of the court in denying him a change of venue. At the same term the defendant was duly arraigned and entered a plea of not guilty. At an adjourned term of the said court in October, 1906, the defendant was put upon his trial and convicted, and his punishment assessed at 50 years in the penitentiary. In due time he filed his motions for new trial and in arrest of judgment, and the same were overruled, and exceptions duly saved, and an appeal granted to this court.

The evidence on the part of the state tended to show that the prosecutrix at the time of the alleged rape was living with her father and mother on a farm near Lewiston, in Lewis county, Mo., and was of the age of 13 years and 10 months. The defendant is a first cousin and brother-in-law of the mother of the prosecutrix. It appeared, further, that for some time prior to the date of the alleged offense the defendant had been residing in the state of Colorado, and a few days prior to the alleged offense had come to Lewis county, and to the residence of the father of the prosecutrix on the evening of June 5, 1906, and remained all night. On the 6th he visited another relative of his in the neighborhood and returned to the Burnett home on the morning of June 7th. The state's evidence tended to show that between half-past 10 and 11 o'clock in the forenoon the defendant was in the kitchen talking to the mother of the prosecutrix, when the latter told the prosecutrix to go upstairs and clean up the bedrooms and move the defendant's grip from the west room into the east room, and prosecutrix went upstairs for that purpose; that the defendant followed her upstairs, and when prosecutrix came out into the hall he grabbed her by the arm and took her into the east room and asked her to go home with him, saying that his wife would return with her; that he then began to take privileges with the prosecutrix's person. He shut the door, laid her on the bed, and had sexual intercourse with her against her will. The prosecutrix testified that she was so frightened that she could not scream—that she was afraid to scream, as defendant had previously stated in her presence that he was hiding from the Colorado officers and that he always carried a pistol. After being released the prosecutrix went across the hall into another room and locked the door. Defendant remained in the east room upstairs and called the prosecutrix to bring him a towel. Hearing defendant calling for a towel, the mother of prosecutrix walked up the stairs a part of the way and pitched a towel to defendant. During this time there was no one upstairs except the defendant and the...