State v. Ward
Decision Date | 11 July 1935 |
Citation | 85 S.W.2d 1,337 Mo. 425 |
Parties | The State v. C. D. Ward, Appellant |
Court | Missouri Supreme Court |
Appeal from Dunklin Circuit Court; Hon. James V. Billings Judge.
Affirmed.
John A McAnally and George Smith for appellant.
Roy McKittrick, Attorney General, and Frank W. Hayes, Assistant Attorney General, for respondent.
(1) The court did not err in overruling appellant's application for continuance. State v. Stroud, 275 S.W. 58; State v. Henson, 234 S.W. 834; State v Messino, 30 S.W.2d 750; State v. Mosley, 22 S.W.2d 784; State v. Wilson, 242 S.W. 886; State v. Reed, 44 S.W.2d 31; State v. Hubbard, 295 S.W. 798. (2) The court did not err in giving Instruction 1 for the State. (3) The court did not err in giving Instruction 2 on behalf of the State. State v. Pfeiffer, 183 S.W. 338; State v. Marshall, 297 S.W. 63. (4) The court did not err in giving Instruction 3 on the part of the State. State v. Manning, 168 Mo. 429; State v. Williams, 152 Mo. 120; State v. Laughlin, 180 Mo. 342; State v. Bobbitt, 228 Mo. 252. (5) The court did not err in admitting in evidence, as part of the res gestae, alleged other rapes upon Emma Sheehy and Frances Sheehy, the action of appellant in compelling said girls to kiss him after raping them, the condition of their clothing immediately after the assault and treatment by a physician. State v. Harrison, 263 Mo. 658; State v. Rasco, 239 Mo. 575; State v. Pfeiffer, 183 S.W. 338; State v. Scott, 172 Mo. 536; State v. Brannan, 206 Mo. 636; State v. Murphy, 118 Mo. 7. (6) The court did not err in permitting the State to introduce in evidence the written confession of the appellant. 16 C. J. 638. (7) The court did not err in permitting the State to cross-examine appellant as to what he told Straub. State v. Glazebrook, 242 S.W. 928; State v. Keener, 225 Mo. 488.
LEEDY
By information filed in the Circuit Court of Dunklin County, numbered 18130, appellant was charged with rape, and upon his trial, was convicted. The death penalty was imposed by the court upon the failure of the jury to agree as to punishment. Appellant has appealed, but has filed no brief. As no question arises as to the sufficiency of the evidence to sustain the verdict, a brief outline thereof will suffice. The brief of the Attorney General fairly states the facts, which we adopt, in part, as follows:
Appellant stoutly denied his guilt. He testified he and McDonald left a caboose in which they had been sleeping a little after dark; that they then parted company, and did not see each other again until five or ten minutes before leaving Malden on a freight train about midnight; that he and a colored boy named "Black Snake" went to a filling station where they remained until nine-thirty or ten o'clock, and he, appellant, then returned to the railroad station where he remained until McDonald came back, and they immediately thereafter left on a freight. Appellant further testified that in St. Louis the next day McDonald told him that he, McDonald, had raped two white girls in Malden the night before. A plea of former conviction was also interposed, which was heard with the case on the merits. By the plea it was averred that appellant had theretofore, and at the same term of said court, been duly convicted for the identical offense charged in the information in the instant case. In the case at bar, appellant was tried for the first rape upon Emma S . The evidence disclosed that appellant had been tried about ten days previously for the second rape upon Emma S , in case No. 18129. Other pertinent facts will be stated in the course of the opinion in connection with the points to which they relate. The motion for new trial contains twenty-one separately numbered paragraphs, assigning as many alleged errors. As some of the assignments raise substantially the same points, they will be grouped and discussed together.
I. The first two grounds, that "the verdict is against the law and against the evidence and against the law under the evidence," and "the verdict of the jury is the result of bias, prejudice and passion" may be disregarded, as under the statute, they preserve nothing for review.
II. Appellant's application for a continuance was overruled, and this action is urged as prejudicially erroneous. The motion was based on the absence of alleged material witnesses, one of whom, it affirmatively appears, being a nonresident of the State, and the other not under subpoena. In the absence of a showing of an abuse of discretion on the part of the trial court, we are not willing to disturb its ruling on a matter of this kind, and no such showing is here made.
III. Complaint is made that Instruction No. 1 is "in conflict with Instruction No. 3, in that the court tells the jury in Instruction No. 1 that defendant pleads not guilty to the charge for which he is on trial and also pleads a former conviction, and Instruction No. 3 tells the jury that as a matter of law defendant has not been formerly convicted."
The court gave Instruction No. 1, which reads as follows "The court instructs you that the defendant is charged in the information and is on trial in this case for...
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