State v. Walker

• Citation: 208 S.W.2d 233,357 Mo. 394
• Decision Date: 09 February 1948
• Docket Number: 40342
• Parties: State v. Orva Walker, Appellant
• Court: Missouri Supreme Court

208 S.W.2d 233

357 Mo. 394

State v. Orva Walker, Appellant

No. 40342

Supreme Court of Missouri

February 9, 1948

Appeal from Howell Circuit Court; Hon. gordon Dorris Judge.

Affirmed.

L George Schubert and Wm. D. Roberts for appellant.

(1) The evidence on the part of the state that the defendant promised and agreed to marry the prosecuting witness and that he and prosecuting witness procured a marriage license and took blood tests preparatory for their marriage did not, and does not, prove or tend to prove the crime of rape or the offense charged. Such evidence was inadmissible for any purpose, was prejudicial to the defendant and constitutes reversible error. State v. Foster, 225 S.W. 671; State v Johnson, 234 S.W. 794. (2) The court erred in rejecting the testimony of Hobart Baxter and Mrs. Baxter his wife, offered by the defendant to corroborate the testimony of Harvey Chappel, witness for the defendant. (3) The court abused his discretion in refusing the request of the defendant to cross-examine the witness Joe Bill Lair, who was called as a witness for the defendant, after he had testified adversely to the defendant to the great surprise of the defendant, the latter having relied on the favorable statements made to his counsel by said witness a short time before he was called as witness. State v. Hogan, 177 S.W.2d 465; Clancy v. St. Louis Transit Co., 91 S.W. 509, 192 Mo. 615; State v. Bowen, 172 S.W. 367, 263 Mo. 279; Crabtree v. Kurn, 173 S.W.2d 851. (4) The court erred in giving on behalf of the state Instruction 1 for the reason that it did not correctly cover all the facts required to be proved by the state to render the defendant guilty of the offense charged. By this instruction the jury were required to find "on or about the -- day of December, 1945", as the date of alleged offense. This instruction did not limit the time to the time testified to by the prosecuting witness. State v. Taylor, 133 S.W.2d 336, 345 Mo. 325. (5) Instruction A offered by the defendant should have been given. The defendant was entitled to the converse instruction as offered presenting fairly and fully his point of view of his defense that the prosecuting witness was not of previously chaste character at the time of the alleged offense testified to by the prosecuting witness. State v. Boyd, 193 S.W.2d 596; State v. Fraley, 116 S.W.2d 17, 342 Mo. 422; State v. Quinn, 130 S.W.2d 511, 344 Mo. 1072; State v. Talbert, 174 S.W.2d 144, 351 Mo. 791; State v. Johnson, 234 S.W. l.c. 796. (6) Instruction B, offered by the defendant, should also have been given. There was no instruction given that attempted to distinguish the difference between reputation and character. This instruction was also the converse of Instructions 1 and 5 given on behalf of the state. Neither Instruction 1 nor Instruction 5 covered defendant's point of view of this phase of the case as did said offered Instruction B. State v. Cook, 207 S.W. 831; State v. Foster, 225 S.W. 671; State v. McMahon, 137 S.W. 872, 234 Mo. 611; State v. Kelly, 150 S.W. 1057, 245 Mo. 489; Cases cited under (5) above.

J. E. Taylor, Attorney General, and Harry H. Kay, Assistant Attorney General, for respondent.

(1) The court did not err in admitting evidence that subsequent to the alleged act the defendant promised to marry the prosecutrix and that he and prosecutrix procured a marriage license. State v. Kelly, 191 Mo. 680, 90 S.W. 834; State v. Cade, 326 Mo. 1132, 34 S.W.2d 82; State v. Pollard, 174 Mo. 607, 74 S.W. 969; State v. Daly, 210 Mo. 664, 109 S.W. 53; State v. Oliver, 337 Mo. 1037, 87 S.W.2d 644. (2) The court did not err in rejecting the testimony of Hobart Baxter and Mrs. Baxter. (3) The court did not err with respect to defendant's examination of witness Joe Bill Lair. State v. Hogan, 177 S.W.2d 465; State v. Drummins, 274 Mo. 632, 204 S.W. 271; State v. Bowen, 263 Mo. 279, 172 S.W. 367. (4) Instruction 1 given on behalf of the state was not erroneous. State v. Henderson, 243 Mo. 503, 147 S.W. 480; State v. Cox, 263 S.W. 215. (5) Instructions A and B offered by defendant were properly refused as they were not the converse of the state's principal instructions but they amounted to a comment on certain portions of the evidence. State v. Williams, 309 Mo. 155, 274 S.W. 427; State v. Boyd, 354 Mo. 1172, 193 S.W.2d 596; State v. Studebaker, 334 Mo. 471, 66 S.W.2d 877; State v. Pate, 268 Mo. 431, 188 S.W. 139; State v. Shaffer, 253 Mo. 320, 161 S.W. 805.

OPINION

Dalton, C.

Appellant was charged by an information with the crime of having feloniously had carnal knowledge of an unmarried female of previous chaste character between the ages of 16 and 18 years, as defined by Sec. 4394 R.S. 1939. Upon trial he was convicted and his punishment fixed "at $ 100 fine and 6 months in the County jail."

According to the state's evidence prosecutrix became 16 years of age on September 3, 1945. She met appellant at the Egypt Grove Church, near Hocomo in Howell County, in October or November 1945, after his return from military service, and she kept company with him during "a protracted meeting" held at the Egypt Grove Church. The meeting lasted about three weeks, beginning in November 1945 and extending into December of that year. Prosecutrix had gone with appellant a time or two before the meeting opened. During the meeting appellant came to her home for her and they didn't miss very many nights. Most of the time her parents came with them in appellant's automobile. Near the last of the meeting, two or three days before it closed, the exact date not fixed, prosecutrix attended a night meeting with appellant alone. He parked his automobile near the church building. After the church services, they got in his automobile, but did not leave immediately as appellant said he was not ready to leave. When all others had left the grounds, appellant told prosecutrix he was going to have sexual intercourse with her, and then over her objections, he proceeded to accomplish his purpose in the front seat of his 1936 Chevrolet automobile. Prosecutrix did not consent, nor did she resist or make any outcry. She did not advise her parents or others of the occurrence until after her pregnancy appeared and she had consulted a physician. The offense took place in Howell County. Prosecutrix was unmarried an had never previously had sexual intercourse with any man. Appellant was 25 years of age. Prosecutrix did not go with him very many times after the alleged offense. She gave birth to a child on September 4, 1946 and said that appellant was the father of her child. Three witnesses for the state testified that, prior to the time her pregnancy became known, her reputation for virtue and chastity was good.

Appellant did not testify as to whether or not he had had sexual intercourse with the prosecutrix at the time and place testified to by her. He testified that he returned from three years military service the night before Halloween in 1945. He met the prosecutrix at the Egypt Grove Church on a Sunday night before the "protracted meeting" started. The first night he met her he asked her to go for a ride with him in his automobile and she consented. About 8 P.M. they drove to a "by-road," about a mile away from the church, where he stopped his automobile and asked her if she wanted to get in the back seat. She did, and moved to the back seat, where appellant had sexual intercourse with her with her consent. They then returned to the church services, coming a little late. According to appellant, the "protracted meeting" began about two weeks after Halloween and lasted for three weeks. Three witnesses testified to appellant's good reputation in the community in which he lived for being truthful, honest, upright and law abiding. Two witnesses, other than appellant, testified to having had sexual intercourse with prosecutrix. One of the witnesses fixed the date as September 1945, and the other as in March or April 1946.

Error is assigned on the admission of alleged incompetent testimony. Prosecutrix testified that, on the night of the alleged offense and after appellant had returned her to her home, he asked her what she was "going to do about it." She told him that, if he would do the right thing about it, he would go ahead and marry her and she would marry him. Appellant promised her that he would marry her. After the prosecutrix had so testified, appellant objected to the testimony and moved to strike it out. The grounds assigned were that the statement did not prove any issue in the case and that the promise was made after the alleged offense testified to by the prosecutrix. Over the same objection, the prosecutrix was further permitted to testify that she and appellant talked later about getting married and "even went as far as getting a license and having blood tests taken." Prosecutrix further testified that appellant said he was 21 years of age, but she later learned that he was older. Objection was made "to what she later learned," the objection was overruled and she testified that, when she and appellant went to get the marriage license, appellant said he was 25 years old. Appellant moved to strike out this testimony for the reasons theretofore assigned and for the further reason that the evidence was highly prejudicial to defendant. He further moved that the jury be instructed not to consider any part of such testimony. The motions were overruled.

Appellant now contends the evidence concerning the alleged promise to marry, the taking of the blood tests and the procurement of a marriage license did not prove or tend to prove any single element of the offense charged, nor any issue in the case that the evidence was not admissible for any purpose; and that its admission was highly prejudicial and...