State v. Wellman

• Decision Date: 09 December 1913
• Citation: 253 Mo. 302,161 S.W. 795
• Parties: STATE v. WELLMAN.
• Court: Missouri Supreme Court

161 S.W. 795

253 Mo. 302

STATE v. WELLMAN.

Supreme Court of Missouri, Division No. 2.

December 9, 1913.

1. SODOMY (§ 5)—STATUTORY OFFENSES.

Rev. St. 1909, § 4726, punishing every person committing the crime against nature with the sexual organs or with the mouth, enlarges the common-law offense, and the acts by which the crime is committed must be designated at least in a general way.

2. SODOMY (§ 5)—INFORMATION—SUFFICIENCY.

An information alleging that accused committed the crime against nature by having sexual intercourse with prosecutrix with his mouth does not charge the crime as defined by Rev. St. 1909, § 4726, notwithstanding the statute of jeofails (section 5115).

3. CRIMINAL LAW (§§ 1054, 1059)—EVIDENCE —OBJECTIONS.

The admission of improper testimony is not reviewable where there was no objection until after its admission, or where accused merely objected without specifying any reason for the exclusion, for to secure the exclusion of evidence there must be specific timely objection pointing out the reasons.

4. CRIMINAL LAW (§ 372)—EVIDENCE—ADMISSIBILITY.

On a trial for sodomy the admission of evidence that accused had the reputation of committing such crime is erroneous, as practically amounting to trying accused for crimes not designated in the information, in violation of Const. art. 2, § 22.

5. CRIMINAL LAW (§ 372)—EVIDENCE—ADMISSIBILITY.

The attempt by the state to prove by rumor or common report that accused had committed the crime on a woman alive at the trial but not called as a witness, and had been guilty of adultery, was improper on the same ground.

6. CRIMINAL LAW (§ 1064) — QUESTIONS REVIEWABLE—MOTION FOR NEW TRIAL.

The point that the court erred in failing to charge that prosecutrix must be corroborated must be ruled against accused where the point is not specifically assigned in the motion for new trial.

7. CRIMINAL LAW (§ 1171) — IMPROPER ARGUMENT OF COUNSEL.

The closing argument of the prosecuting attorney, to the effect that accused had lived in adultery with his wife before his marriage to her, and that he lived with a harlot at the time of the commission of the crime, is ground for reversal, in the absence of any evidence justifying the argument, where the court merely mildly criticized the prosecuting attorney.

8. CRIMINAL LAW (§ 1171)—IMPROPER ARGUMENT OF COUNSEL.

The closing argument of the prosecuting attorney, wherein he denounced a witness for accused as a prostitute and a woman unworthy of belief, was prejudicial where there was no evidence justifying the charge.

9. CRIMINAL LAW (§ 1037)—IMPROPER REMARKS OF PROSECUTING ATTORNEY—REVIEW —OBJECTIONS.

The court on appeal may disregard improper remarks of the prosecuting attorney in his closing argument where the remarks were not objected to.

10. CRIMINAL LAW (§ 722½)—ARGUMENT OF PROSECUTING ATTORNEY.

Proof that accused on trial for sodomy had been convicted of adultery does not justify the prosecuting attorney in referring in his remarks to the conviction of adultery as evidence of his guilt of the crime charged; but the argument must be confined to an effort to discredit the testimony of accused where he testified in his own behalf.

11. CRIMINAL LAW (§ 376)—IMPEACHMENT.

Evidence of the bad character of accused is admissible solely to impeach him as a witness, and, where he does not testify or otherwise place his reputation in issue, the evidence is inadmissible.

Appeal from Criminal Court, Jackson County; Ralph S. Latshaw, Judge.

Joseph Wellman was convicted of sodomy, and appeals. Reversed and remanded for new trial.

Convicted of the crime against nature as defined by the Laws of 1911, p. 198, defendant appeals from a judgment of the criminal court of Jackson county sentencing him to a term of three years in the penitentiary. The following is a summary of the evidence:

During the months of December, 1912, and January, 1913, the defendant kept a rooming house in Kansas City, Mo., which house he had operated for five years. A few doors from defendant's rooming house was a jewelry store owned by one Louie Shaffer, in which store defendant was employed as an optician. In the same store was employed one Belle Shaffer, a 16 year old sister of Louie Shaffer. Belle Shaffer testified that during the absence of her brother from the store defendant made love to her, kissed her, made her some small presents, and asked her to marry him; that he told her that her brother was going to fail in business, and he would take care of her; that defendant requested her to go with him to a room on Union avenue in Kansas City, where he would tell her an important secret about her brother's jewelry business, and that, having gained her confidence, she went with him as requested; that when they entered the room defendant locked the door, and solicited her to have sexual intercourse with him; that she refused, and that he then threw her down on a bed, put his head under her clothes, and inserted his mouth into her private parts, keeping her in that position for about an hour; that at his request she met him outside the store almost every other day for a period of about two weeks, when they would go to his room, and defendant would repeat this crime against nature; that defendant warned her that they would both be prosecuted if she told any one what he had done.

In the month of July, 1913, Belle Shaffer informed her mother and brother Louie of defendant's crime, and her brother took her to the prosecuting attorney's office and procured a warrant for defendant. There was evidence that Belle Shaffer was afflicted with melancholy about five or six months after the commission of the alleged crime upon her by defendant, and that she acted as though she was losing her mind; but this evidence was withdrawn from the jury by instruction. There is no evidence that defendant and Belle Shaffer were ever seen together outside the jewelry store, except on one occasion when defendant accompanied her and his wife to a store and purchased each of them a coat. It does not clearly appear who paid for the coats. Belle Shaffer further testified that she did not know that defendant was married; that in speaking to her about his wife he referred to his wife as his housekeeper.

Defendant, testifying in his own behalf, denied the crime, and denied that he ever attempted to wrong Belle Shaffer in any manner. He stated that Belle Shaffer knew that he was a married man when she was working in her brother's store; that she sent his wife a box of candy in which there was a card directed to her as Mrs. Wellman. He also introduced a certificate showing that he was duly married in Clay county, Mo., in August, 1911, to Mrs. Mary Hull, the woman with whom he was living in January, 1913. Defendant also denied that he had committed adultery with his wife before they were married; but he admitted that she was a partner with him in his rooming house before their marriage. He also testified that he took her to Hot Springs, Ark., when she was sick before they were married, and stated that they stopped at different hotels, and he sustained no improper relations with her.

Defendant also introduced one Ida Sours, a chambermaid who worked in his rooming house. She testified that immediately after defendant's arrest Louie Shaffer came to see her and told her, in substance, that, if defendant would "come across" with a few hundred dollars, the case could be settled out of court, otherwise defendant would have to stay in jail; that he (Shaffer) was broke, and needed some money. It appears by other evidence that Louie Shaffer did go into bankruptcy in the month of January, 1913. Two witnesses testified that defendant's general reputation for morality was bad; two others testified that it was good. In rebuttal Louie Shaffer admitted that he called on Ida Sours, but denied that he told her that the case could be settled for a money consideration. He stated that he called on Ida Sours to see if he could secure her evidence as a witness for the state, and to learn from her the whereabouts of another witness. Belle Shaffer was also recalled and denied sending the box of candy to defendant's wife. The prosecuting attorney offered to prove by the records in the juvenile court of Kansas City that prior to her marriage to defendant Mrs. Wellman's child was taken from her because she was living in adultery with defendant; but that evidence was rejected by the court.

H. A. Owen and F. W. Paschal, both of St. Joseph, and C. B. Leavel, of Kansas City, for appellant. John T. Barker, Atty. Gen., and Ernest A. Green, Asst. Atty. Gen., for the State.

BROWN, P. J. (after stating the facts as above).

I. Information. For reversal defendant asserts that (1) the information does not charge the offense of which he was convicted; (2) that improper evidence was admitted; (3) that the court erred in its instructions to the jury; and (4) that the assistant prosecuting attorney made improper and prejudicial remarks to and in the hearing of the jury.

We shall first consider the error of the trial court in refusing to arrest the judgment on account of the alleged insufficiency of the information. The law which defendant is charged with violating is section 4726, R. S. 1909, which, as amended by the Laws of 1911, reads as follows: "Every person who shall be convicted of the detestable and abominal crime against nature, committed with mankind or with beast, with the sexual organs or with the mouth, shall be punished by imprisonment in the penitentiary not less than two years."

The information, omitting caption, signature, and verification, is as follows: "Now comes Floyd E. Jacobs, first assistant prosecuting attorney for the state of Missouri, in and for the body of the county of Jackson, and upon his oath informs the court that Joseph Wellman, whose Christian name in full is unknown to said first assistant prosecuting attorney late of the county aforesaid, on the ____ day of January, 1912,...