State v. Ward

• Decision Date: 11 July 1935
• Docket Number: No. 33456.,33456.
• Citation: 85 S.W.2d 1
• Parties: THE STATE v. C.D. WARD, Appellant.
• Court: Missouri Supreme Court

85 S.W.2d 1

THE STATE v. C.D. WARD, Appellant.

No. 33456.

Supreme Court of Missouri.

Division Two, July 11, 1935.

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, J.

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:

"Emma S____, 27 years of age, and her sister, Frances S____, had been to church at Malden, Dunklin County, Missouri, in the evening of the 28th day of May, 1933. The church was located on Highway No. 25 about a block south of the Cotton Belt depot in the south part of Malden. They left the church about 10 o'clock that evening in company with some young people by the name of Easterline, who accompanied the S____ girls until they came to the corner of the bakery, one block north of the Cotton Belt depot, where the Easterline people turned east to go home and the S____ girls continued north up the main street of the town. They continued in a northerly direction and when they reached a point about a quarter of a mile beyond the city limits, some person from the rear accosted them and told them to stop and stick up their hands. They recognized the voice as a man's voice and they stopped and turned around, and the man, who was a negro, ordered them to come with him out into the cotton field. The girls begged him not to make them go with him and stated they did not have any money, but the man replied that it was not money he was after and threatened to shoot them unless they obeyed. He had his right hand in the front of his shirt and had a sweater over his left arm. He took hold of the wrist of Emma S____, who begged and pleaded to be let alone, but the appellant ordered them to go with him or he would shoot them. He compelled them to cross the ditch at the side of the road and go into the Reyburn cotton field. All the time the girls were pleading to be left alone and the appellant was threatening to shoot them.

"He ordered Emma S____ to lie down, which she did after much protest and after the appellant appeared to be about to strike her. At that time the appellant had a knife in his hand. He forced Frances S____, the sister, to lie down beside Emma S____, and then the appellant got down on his knees and tore off the bloomers of Emma S____, then forcibly and against the will of Emma S____ had sexual intercourse with her. The appellant then had sexual intercourse with Frances S____, forcibly and against her will, whom he had compelled to lie down beside Emma S____, and against whose throat he had held a knife while the first act of intercourse was being committed upon Emma S____. After he had attacked Frances S____, he returned to Emma S____ and committed the second rape upon her.

"After the second act of rape upon Emma S____, the appellant permitted the girls to arise and they started out of the field. The appellant made the girls go with him until they arrived at the fence encircling the field where he picked up his sweater (after compelling the girls to kiss him good-night) permitted the girls to go their way and slipped away.

"The girls immediately went home, undressed and cleaned their clothes, which had been soiled, and then immediately notified their father and mother. Dr. S.E. Mitchell was called and cared for the girls over a period of time and treated them for bruises and lacerations resulting from the rape. The appellant was apprehended in Helena, Arkansas, and was identified by Emma S____ as being the person who attacked her. At the same time he also was identified by Frances S____ as the person who attacked her.

"While the appellant was in custody of the law at Helena, Arkansas, on September 29, 1933, he executed a written confession in which he traced his movements which led him to Malden, and in which he detailed his actions while in Malden, and admitted that he raped two white girls on the 28th of May, 1933. The appellant's confession as to what transpired in connection with the rape is identical with the testimony of the two S____ girls. The appellant also admitted to Sam Ward, who was in jail at the same time as was the appellant, that he had raped two white girls at Malden. The appellant also admitted to Wardell McDonald, who was with appellant in Malden at the time the attack occurred, that he had raped two white girls. This admission by the appellant to McDonald occurred immediately after the appellant had returned from the scene of his crime to the station for the purpose of catching a freight train, and when he and McDonald bummed their way out of town together.

"The appellant, in his defense, denied the raping of the S____ girls and claimed that the confession which was signed by him and introduced in evidence had been obtained from him by force and by promises. The officers, however, in charge of the jail at the time testified that the confession was executed voluntarily and that no violence, threats or promises had been used in obtaining it."

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 the first alleged rape, if any, upon one Emma S____, at the time and place mentioned in the information and as set forth and mentioned in the testimony,...