State v. Withers, 48377

• Decision Date: 12 June 1961
• Docket Number: No. 48377,No. 1,48377,1
• Citation: 347 S.W.2d 146
• Parties: STATE of Missouri, Respondent, v. Charles WITHERS, Appellant
• Court: Missouri Supreme Court

Page 146

347 S.W.2d 146

STATE of Missouri, Respondent, v. Charles WITHERS, Appellant.

No. 48377.

Supreme Court of Missouri, Division No. 1.

June 12, 1961.

Frieze & Crandall, Carthage, Edward G. Farmer, Jr., Joplin, for appellant.

Thomas F. Eagleton, Atty. Gen., Edward A. Glenn, Sp. Asst. Atty. Gen., for respondent.

HOLLINGSWORTH, Judge.

Defendant has appealed from the sentence imposed upon him in accordance with the verdict of a jury finding him guilty of the crime of immoral molestation of a female minor, as that offense is defined in Sec. 563.160 RSMo 1959, ¹ and assessing his punishment at imprisonment in the State Penitentiary for a term of five years and a fine of $500. Although represented by counsel at trial, no brief has been filed in his behalf in this court. We, therefore, review all valid assignments of error set forth in the motion for new trial filed in his behalf, as required by S.Ct. Rule 27.20, V.A.M.R., and the portions of the record required by S.Ct. Rule 28.02.

The motion for new trial assigns error (1) in the overruling of defendant's application for continuance filed following the filing of an amended information on the morning the cause came on for trial; (2) in the refusal of defendant's motion to suppress as evidence and the later admission into evidence of certain photographs constituting visual proof of defendant's guilt; (3) in (allegedly) permitting the prosecuting attorney to display before the jury and to refer to statements signed by several girls relating to sexual misconduct of defendant with them; (4) in permitting improper cross-examination of defendant relative to molestation of other female minors and his arrest therefor; and (5) in the refusal of the court to dismiss the case and to direct that defendant be proceeded against under Secs. 202.700-202.770, relating to criminal sexual psychopathic persons.

The essential facts are not controverted. During the month of August, 1958, and for several years prior thereto defendant, Charles Withers, and his wife, Earlene, operated a motel not far from the home of a Mrs. H_____ and her daughter, Carolyn. The age of the latter at that time (August, 1958) was fourteen years. At the instance of Earlene, Carolyn visited defendant and Earlene at the motel on two occasions. On the first occasion she stayed all night. Nothing of moment occurred during that visit. About one week later, on August 4, 1958, Carolyn again visited them. On that visit, Earlene asked Carolyn if she knew of some girl that 'would go with (defendant) Charles,' which inquiry Carolyn answered to the negative. Defendant then asked Carolyn if she 'would go with' him and Carolyn refused. Earlene and Carolyn then went into the bedroom followed by defendant. Earlene asked Carolyn if she wanted to take some pictures and suggested that Carolyn remove her clothing, stating that if she refused defendant would remove it. Defendant, Earlene and Carolyn then and there completely disrobed. Carolyn was provided with a camera and, after being shown how to use it, took a picture of Charles and Earlene standing nude side by side; defendant took a picture of Earlene and Carolyn standing nude side by side; and Earlene took a picture of defendant and Carolyn standing nude side by side. Defendant then pulled Carolyn down on the bed and, as they, unde, lay side by side upon the bed in lewd embrace, Earlene took their picture. Defendant then posed himself and Carolyn in a posture of lewd embrace upon the floor and Earlene took their picture in that position. At the conclusion of the taking of these pictures, Carolyn donned her clothing and was escorted to her home by Earlene.

At the trial Carolyn identified the photographs, Exhibits 1, 2, 3 and 4, hereinabove referred to and they were, over the objection of defendant, admitted into evidence and shown to the jury.

Dr. J. D. Coombs, a duly qualified physician, employed as a specialist in psychiatry at State Hospital No. 3 in Nevada, testified (on May 20, 1960) in behalf of defendant that defendant, a voluntary patient at the hospital, was at trial time and when first seen by the witness, on January 16, 1960, 'mentally sick'; that he could not state whether defendant was mentally sick in 1958; and that, in the opinion of the witness, defendant, 'in the ordinary sense,' knew the difference between right and wrong.

Such additional portions of the proceedings and evidence as are necessary to the ruling of any of the errors assigned will be hereinafter set forth.

Upon return of the verdict the trial judge, in open court, with counsel for both the State and defendant present, granted defendant due allocution and then and there rendered and entered final judgment therein, expressly granting defendant 30 days in which to file motion for new trial, and said motion was thereafter so filed. It must be here observed that in entering formal judgment prior to the expiration of the time granted defendant by the court for the filing and adverse determination of his motion for new trial, the trial court unquestionably erred. State v. Keller, 304 Mo. 63, 263 S.W. 171, 173; State v. Parker, Mo., 310 S.W.2d 923, 924; State v. Morrow, Mo., 316 S.W.2d 527. However, inasmuch as the judgment is regular on its face and defendant was granted allocution prior to sentence, we think that, although the judgment was prematurely entered of record, this court may treat it as becoming effective upon the overruling of defendant's motion for new trial. State v. West, Mo., 270 S.W. 279, 281.

The trial court did not err in overruling defendant's application for continuance. The record shows that following preliminary hearing held on December 9, 1959, defendant was bound over to the circuit court. On December 21, 1959, information was filed, to which defendant waived formal arraignment and entered a plea of not guilty. That information alleged the substance of the molestation hereinabove shown by the evidence to have been committed by defendant upon Carolyn. When the case was called for trial on May 19, 1960, defendant's motion to quash the information was filed and sustained by the trial court, whereupon the State immediately filed an amended information, more explicitly setting forth the details of the facts above set forth. Defendant thereupon filed motion for a continuance alleging insufficiency of time in which to study the charges contained in the amended information and time to prepare for trial. After hearing statements of counsel for both parties, the court held that defendant would not be prejudiced by proceeding to trial. S.Ct. Rule 24.15 provides that no amendment of an information 'shall cause a delay of the trial unless the defendant shall satisfy the court that such amendment * * * has made it necessary that [defendant] have additional time in which to prepare his defense.' There is a total lack of any showing whatever that defendant was or could have been prejudiced by reason of the amendment made to the original information. The assignment is overruled.

Following the overruling of defendant's application for continuance, defendant filed his motion to suppress the photographs taken of and by Carolyn, Earlene and defendant. That motion was predicated solely upon grounds that the photographs were seized without a search warrant and not in connection with the arrest of defendant, that they were not in the condition as when seized for the reason that they were thereafter developed by the law enforcement oped film thereof; and that they were not made by defendant and did not prove or disprove any issue. The evidence adduced by defendant in support of his motion to suppress is as follows: On August 20, 1958, Deputy Sheriff Miller, bearing a warrant for the arrest of Earlene for 'the crime of child molestation' of another minor, went to the motel, where he found both defendant and Earlene. Following arrest of Earlene, he stated to her and defendant that he was searching for 'pictures of teen-age girls.' Defendant told him to 'go ahead and search, that all they had was family pictures.' Defendant opened a drawer, revealing, among a number of photographs, two rolls of undeveloped picture film. When these were taken from the drawer, defendant was asked to whom they belonged, to which he replied, 'I don't know. It must have been the people who lived here before * * *.' The sheriff, without objection, took them and upon development of them, the pictures taken of and by Carolyn, defendant and Earlene were revealed, along with a lewd picture or pictures of another young girl. When these photographs were identified by Carolyn at the trial and offered in evidence by the State, defendant objected on grounds following: 'The defendant has admitted that Exhibits 1, 2, 3 and 4 were taken, by whom they were taken, in whose presence they were taken, what the pictures depicted, and purported to show, who were in the pictures and the relative position of the parties. * * * The defendant has by admission conceded the facts essential to the allegation of the picture taking, and in effect takes that issue out of this case. It is the...