State v. Walker

• Court: Missouri Supreme Court
• Writing for the Court: WILLIAMS, C. Per Curiam.
• Citation: State v. Walker, 157 S.W. 309, 250 Mo. 316 (Mo. 1913)
• Decision Date: 20 May 1913
• Parties: THE STATE v. THOMAS WALKER, Appellant

157 S.W. 309

250 Mo. 316

THE STATE v. THOMAS WALKER, Appellant

Supreme Court of Missouri, Second Division

May 20, 1913

Appeal from Daviess Circuit Court. -- Hon. Arch B. Davis, Judge.

Affirmed.

J. C Leopard and Thomas H. Hicklin for appellant.

(1) In cases of conflicting affidavits, where the credibility of the proposed new witness is involved, the court should not assume the functions of a jury, but should grant a new trial. 14 Ency. Pl. & Pr., pp. 794, 795, and cases cited under note 2 p. 795. (2) The proposed evidence is not cumulative, even though it is additional to other evidence tending to prove the same thing, where it is of a different character and proof of a new and distinct fact. State v. Curtis, 77 Mo. 267; State v. Murray, 91 Mo. 103; 14 Ency Pl. & Pr., pp. 815-817, and notes 1 and 2, p. 817; St. John v. Alderson, 32 Gratt. (Va.) 140. (3) The proposed new evidence would probably produce a different result on a new trial. State v. Curtis, 77 Mo. 267; State v. Moberly, 121 Mo. 614; State v. Murray, 91 Mo. 103. (4) Where evidence, as of the Preston girl, has been denied and attacked, even cumulative, newly discovered evidence would be admissible. State v. Evans, 65 Mo. 580.

John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.

There is no error in instruction 5. The affidavit was filed February 4, 1911, and that day the prosecution was begun and the running of the Statute of Limitations was interrupted. Sec. 2441, R.S. 1909; State v. Sassaman, 214 Mo. 720.

WILLIAMS, C. Roy, C., concurs.

OPINION

WILLIAMS, C.

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 fourteen and eighteen 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 fifteen and the defendant about thirty-two 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 struck 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 on to 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 six dollars, 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 of 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 twenty-five to fifty dollars 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 ten or eleven 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 that 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 fifteen 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 colored boy came to the house, and, after some conversation with the two girls, asked Nettie to have sexual intercourse with him, to which she consented, and that said colored boy and Nettie did then and there indulge in sexual intercourse, and that she, witness, stood by in the room and saw them so engaged. The affidavit further states that the foregoing evidence first came to defendant's knowledge since the trial, and on Saturday night, October 28, 1911, and that "he has been trying for a long time -- in fact, ever since his arrest -- to learn of such evidence, but failed to learn of it until that time, when the said Mabel told his, defendant's, father, Alexander Walker, what she would testify, and it was not owing to want of diligence that such information did not come sooner." The affidavit of said Mabel Maupin was also filed, corroborating the statements of defendant's affidavit as to the evidence he claimed she would give. The State thereupon filed counter affidavits of ten persons to the effect that said Mabel Maupin was "an unmarried female, the mother of a child, and that her general reputation for truth and veracity and virtue and chastity, in the town of Gallatin, where she lived during the summer of 1910, was bad." Defendant then filed the affidavits of nine persons to the effect that, while Mabel...