State v. Westfall
| Decision Date | 13 May 1963 |
| Docket Number | No. 49204,No. 1,49204,1 |
| Citation | 367 S.W.2d 593 |
| Parties | STATE of Missouri, Respondent, v. Marcus WESTFALL, Appellant |
| Court | Missouri Supreme Court |
Thomas F. Eagleton, Atty. Gen., Jefferson City, James W. Steele, Sp. Asst. Atty. Gen., St. Joseph, for respondent.
HOUSER, Commissioner.
Under Sec. 563.160, V.A.M.S., defendant was charged with and convicted of indulging in a degrading, lewd, immoral and vicious practice with a minor, a ten year old boy, by forcing his penis into the rectum of the minor. The jury assessed his punishment at four years in the penitentiary. Defendant appealed from the judgment and sentence.
The victim testified that while walking home he fell and sprained his ankle in front of defendant's house; that defendant and a boy identified as Elmer Williams ran out of the house, picked him up, carried him into defendant's house and took him into the bedroom; that defendant pulled the victim's blue jean pants down to his ankles; that Elmer held the victim's hand while defendant stuck his penis in the victim's behind or 'rear end'; that he felt defendant putting 'his thing' into his rectum; that defendant offered him 25cents and told him not to tell his mother or the police; that he ran out of the house, bleeding, and across the street for help; that the police were called and the victim reported what happened to the police, who took him to the hospital. The policeman called corroborated the bleeding; the report of the incident; that the boy named the defendant as the one who did it, and stated that he took the boy to the hospital. The surgical resident at the hospital testified that the boy was crying, in pain, and stated that an older boy had stuck his penis into the boy's rectum. Examination revealed lacerations extending radially around the rectum as though something had been pushed in. The mucosa had 'given' or split. The doctor testified that the type of injury the boy sustained could have been caused by a man's penis.
Defendant denied the occurrence, claimed he was elsewhere when it happened, and had evidence to support his alibi. Elmer Williams denied the incident, and claimed he did not see the victim that day until after the police picked him up.
Defendant having filed no brief we review all specifications of error properly preserved in his motion for new trial, Sup.Ct. Rule 27.20, V.A.M.R., and the portions of the record required by Sup.Ct. Rule 28.02, V.A.M.R.
This assignment is too general and is insufficient to warrant appellate review, under Sup.Ct. Rule 27.20. State v. Archer, Mo.Sup., 328 S.W.2d 661; State v. Pruett, Mo.Sup., 342 S.W.2d 943. Nevertheless, we restate the rule that punishment assessed against a defendant within the limits fixed by statute cannot be held to be cruel or unusual, State v. Archer, supra, 328 S.W.2d, l. c. 666, and cases cited, or unjust. The penalty prescribed by Sec. 563.160 is imprisonment in the penitentiary for a period not exceeding five years, or imprisonment in the county jail for a period not exceeding one year, or a fine in a sum not to exceed $500 or by both such fine and imprisonment. The jury having assessed the punishment within the limits prescribed, it cannot be adjudged cruel or unjust.
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State v. Webb
...the Court was not in error in failing to give one. State v. Harris, Mo., 356 S.W.2d 889; State v. Keck, Mo., 389 S.W.2d 816; State v. Westfall, Mo., 367 S.W.2d 593; State v. Johnson, Mo., 234 S.W.2d 219; State v. Hutchin, Mo., 353 S.W.2d 701; State v. Fields, Mo., 293 S.W.2d 952. In Harris,......
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J.L.P.(H.) v. D.J.P.
...testimony indicated. A few minutes research discloses the following appellate decisions involving such molestation. State v. Westfall, 367 S.W.2d 593 (Mo.1963); State v. Oswald, 306 S.W.2d 559 (Mo.1957); State v. Counts, 572 S.W.2d 885 (Mo.App.1978); State v. Smith, 540 S.W.2d 189 (Mo.App.1......
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State v. Johnson, s. 54742
...punishment imposed here is within the statutory limits and, therefore, cannot be held to be cruel or unusual or excessive. State v. Westfall, Mo., 367 S.W.2d 593. Punishment imposed within the statutory limits presents nothing for appellate review. State v. Jackson, Mo., 371 S.W.2d 309. The......
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State v. Keck
...upon the defense of alibi, and in the absence of such a request or offer, we will not convict the trial court of error. State v. Westfall, Mo., 367 S.W.2d 593, 595[5-7]; State v. Harris, Mo., 356 S.W.2d 889, We have examined the matters set forth in Rules of Criminal Procedure, Secs. 28.02 ......