State v. Walker

• Decision Date: 20 May 1913
• Citation: 157 S.W. 309
• Parties: STATE v. WALKER.
• Court: Missouri Supreme Court

157 S.W. 309

STATE v. WALKER.

Supreme Court of Missouri, Division No. 2.

May 20, 1913.

1. CRIMINAL LAW (§ 1172)—APPEAL—HARMLESS ERROR.

Where all the evidence in a criminal prosecution showed that the information filed in April, 1911, was filed within less than a year after the offense, an instruction allowing the conviction to be had if the jury found accused committed the offense charged within three years from February, 1911, the time when the affidavit of the complaining witness was filed, is harmless, though erroneous under Rev. St. 1909, § 4945, limiting the prosecution for such felonies to three years.

2. CRIMINAL LAW (§ 958)—NEW TRIAL— NEWLY DISCOVERED EVIDENCE—DILIGENCE.

Where a new trial is sought on the ground of newly discovered evidence, and the evidence set forth was not such as to show that diligence would have been of no avail, the affidavit must not only aver accused's diligence, but must state facts showing diligence instead of the mere conclusion.

3. CRIMINAL LAW (§ 958)—NEW TRIAL— NEWLY DISCOVERED EVIDENCE.

In a prosecution for statutory rape, where one uncontradicted witness had testified to the prosecutrix's previous unchaste character, newly discovered testimony to the same effect is not ground for new trial, where it appeared that the witness in question was impeached by cross-affidavits, for such testimony would probably not affect the verdict.

4. CRIMINAL LAW (§ 1156)—APPEAL—DISCRETION OF LOWER COURT.

As the granting of a new trial on the ground of newly discovered evidence rests largely in the sound discretion of the trial court, that tribunal's determination will not be interfered with in the absence of an abuse of such discretion.

Appeal from Circuit Court, Daviess County; Arch B. Davis, Judge.

Thomas Walker was convicted of crime, and he appeals. Affirmed.

Defendant was tried in the circuit court of Daviess county, upon an information charging him with having carnal knowledge of an unmarried female of previous chaste character, between the ages of 14 and 18 years, was found guilty, and his punishment assessed at imprisonment in the penitentiary for a term of two years.

The state's evidence disclosed that the defendant and the prosecuting witness were negroes, and that at the time the offense was committed the prosecuting witness was 15 and the defendant about 32 years of age. In October, 1910, Nettie, the prosecuting witness, was at the home of a neighbor, where she and another girl called Irene, being the only persons in the house, were playing on the organ and singing. Defendant came into the house and room where the girls were, went up to the organ, and began pulling at Irene, who stuck him with her hat pin, and told him "she was not going to do what he wanted her to do." Defendant then turned his attention to the prosecuting witness, took hold of her, "pushed" her into another room and up a flight of stairs, and over and onto a bed, where he had sexual intercourse with her. Just before the commission of the offense defendant promised to pay the girl, for her consent to the act, the sum of $6, and a few days thereafter he paid her the sum promised.

The prosecutrix testified that this was her first act of intercourse. Several witnesses testified that prior to this occurrence the girl's reputation for virtue and chastity was good. Three or four letters proven to be in the handwriting of defendant, and addressed to the girl's parents, were offered and read in evidence, in which letters defendant sought to compromise his difficulty by offering to pay from $25 to $50 to the parents, and to marry the girl.

Defendant did not testify in his own behalf, but produced evidence tending to show that, during the summer prior to the commission of the offense, the prosecutrix would remain out in town as late as 10 or 11 o'clock at night, necessitating her mother's going after her, bringing her home, and punishing her.

Alberta Preston testified on behalf of defendant that some time in June, and prior to the offense complained of, she had a conversation with Nettie, the prosecutrix, while walking along the street, during which conversation Nettie pointed out to witness a certain white boy on the street, and said she had had sexual intercourse with him.

Defendant filed a motion for a new trial, and one of the grounds thereof was that he had discovered new and material evidence since the date of the trial. In support of this ground of the motion he filed an affidavit to the effect that the newly discovered witness was one Mabel Maupin; that said Mabel would, if sworn as a witness, testify that she was about 15 years of age, and that the prosecuting witness, prior to this offense, had told her of having sexual intercourse with a colored boy, and that on another occasion she saw Nettie and a white boy go under a porch on the west end of one of the store buildings in Gallatin for the purpose of having sexual intercourse, that at another time, and prior to this offense, Nettie was visiting with her at the place she was living, when a...