State v. Walker, 57135

• Decision Date: 11 September 1972
• Docket Number: No. 2,No. 57135,57135,2
• Citation: 484 S.W.2d 284
• Parties: STATE of Missouri, Respondent, v. Daniel Ray WALKER, Appellant
• Court: Missouri Supreme Court

Page 284

484 S.W.2d 284

STATE of Missouri, Respondent, v. Daniel Ray WALKER, Appellant.

No. 57135.

Supreme Court of Missouri, Division No. 2.

Sept. 11, 1972.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.

John R. Moore, Donald R. Tharp, Platte City, for appellant.

STOCKARD, Commissioner.

Daniel Ray Walker was charged by information in three counts with rape and two separate and different acts of sodomy. He was also charged under the nhabitual criminal act, and upon being found guilty by the jury of the offense charged in each of the three counts, he was sentenced by the court to life imprisonment for each offense, the sentences to be served concurrently. The notice of appeal was filed in this court prior to January 1, 1972, and therefore this court has jurisdiction. Art. V, §§ 3 and 31, Constitution of Missouri, V.A.M.S.

Appellant does not challenge the sufficiency of the evidence to sustain the verdicts as to any of the counts. The evidence authorizes a finding by the jury that on March 6, 1970, he had sexual intercourse by use of force and threats of bodily harm with the prosecuting witness, and that on the same occasion he engaged in two separate and different acts of sodomy against her will.

Appellant's first point is that the court erred in overruling his request that the State be required to elect on which one of the three counts it would proceed to trial.

At the time of appellant's trial, June 14, 1971, Supreme Court Rule 24.04, V.A.M.R., then in effect, did not authorize the joinder in one information of the three offenses with which appellant was charged. An amendment to Rule 24.04 became effective on July 1, 1971 which then authorized such joinder and the trial of the three charges at the same time. Appellant does not contend that if his trial had been held subsequent to July 1, 1971, he could not properly, pursuant to the Amended Rule 24.04, have been tried in a single trial for the three offenses.

As a general rule an accused may not, over his objection, be convicted in one trial of two or more distinct felonies, except in those cases specifically authorized by statute or rule. State v. Terry, Mo., 325 S.W.2d 1. However, the joinder of distinct felonies, other than those specifically authorized, does not result in the indictment or information being bad as a matter of law. State v. Gholson, Mo., 292 S.W. 27. When two or more felonies are improperly charged in the same indictment or information, the remedy is to require the State to elect on which count it will go to the jury, State v. Frankum, Mo., 425 S.W.2d 183, 189, but an accused cannot complain of a failure of the prosecution to elect where he has made no request for an election. State v. Terry, Mo., supra. In this case, before trial, appellant did object to the information on the basis that it charged him with three felonies, and he also moved that the State be required to elect on which one of the counts it would proceed to trial.

It must be conceded that the then applicable rule did not authorize the State to try appellant for the three offenses in one trial. But Rule 24.04 is procedural, and in the event the judgment of the trial court is reversed and the cause remanded, the State would then be authorized to retry appellant in the precise manner in which the first trial was held.

It has been said that error in a criminal case is presumed to be prejudicial, State v. Allen, Mo., 246 S.W. 946; State v. Hulbert, 299 Mo., 572, 253 S.W. 764, but such a presumption is not conclusive, State v. Boone, 355 Mo. 550, 196 S.W.2d 794, certiorari denied 334 U.S. 823, 68 S.Ct. 1078, 92 L.Ed. 1752, and may be overcome by the facts and circumstances of the particular case. State v. Coleman, 186 Mo. 151, 84 S.W. 978, 69 L.R.A. 381. Although we have found no case with a similar factual situation, we are of the opinion that the error in this case was harmless in view of the fact that a second trial would be conducted precisely as the first. Harmless error is not grounds for reversal of a judgment. State v. Davis, Mo., 369 S.W.2d 237; State v. Spica, Mo., 389 S.W.2d 35, certiorari denied, 383 U.S. 972, 86 S.Ct. 1277, 16 L.Ed.2d 312. At most we find a procedural error without prejudice.

During the testimony of the prosecuting witness concerning the force used by appellant in committing the offenses, she stated: '* * * he sat there with his arm around me and started talking about his family, he told me that he had been up for two rape cases before--.' At this point counsel for appellant objected because 'this would be strictly hearsay,' and asked that the court instruct the jury to disregard the statement and also that the witness be instructed not to make 'such spontaneous remarks.' A discussion between the court and counsel was held in which the prosecutor advised the court that 'I anticipate what she will say Mr. Walker said is that you better not tell anybody about this because I've been up on two rape charges before, and I've beaten both of them, or words to that effect, and that that is a threat against her reporting this incident to any one.' The court then stated: 'I will overrule your objection. I won't strike it at this time. We'll wait and see. But as far as the spontaneous remarks are concerned, Mr. Moore, I'll have to wait and see. I can't tell what she is going to come up with Mr. Moore. I can't anticipate that. You'll have to object when it comes up. At this time I deny your objection.' Counsel for appellant then moved for a mistrial because the State had shown 'the possibility or indication that this defendant has committed other rapes, and without the court taking some action to alleviate that from the minds of the jury, the defendant at this time moves for a mistrial.'

The prosecuting witness then testified that 'He told me he had been up for rape twice before and that he hadn't been convicted, that he could always get out of it, and I might as well not tell my folks or the police because it wouldn't do any...