State v. Wolfe

• Decision Date: 09 January 1961
• Docket Number: No. 48188,48188
• Citation: 343 S.W.2d 10
• Parties: STATE of Missouri, Respondent, v. Ronald Lee WOLFE, Appellant.
• Court: Missouri Supreme Court

Page 10

343 S.W.2d 10

STATE of Missouri, Respondent, v. Ronald Lee WOLFE, Appellant.

No. 48188.

Supreme Court of Missouri, En Banc.

Jan. 9, 1961.

Rehearing Denied Feb. 13, 1961.

F. D. Wilkins, John M. McIlory, James B. Herd St. Louis, for appellant.

John M. Dalton, Atty. Gen., Fred L. Howard and Calvin K. Hamilton, Asst. Attys. Gen., for respondent.

LEEDY, Judge.

Appellant was charged with statutory rape under the provisions of Sec. 559.260 (all statutory references are to RSMo 1949 and V.A.M.S., unless otherwise expressly noted), and, for the purpose of enhancing the punishment under the Habitual Criminal Act (Sec. 556.280 as repealed and reenacted, Laws 1959, S.B. 117, Sec. 1, and Sec. 556.290), the information alleged his ten prior felony convictions. In conformity with the requirements of Sec. 556.280, the trial judge (out of the presence of the jury and prior to the submission of the case) heard and determined the evidence of the alleged prior convictions, and found that the accused (hereinafter referred to as defendant) had been convicted, sentenced and subsequently imprisoned as alleged in the information, and entered said finding of record. The question of defendant's guilt of the substantive offense charged was submitted to the jury under appropriate instructions, and it returned a verdict finding him 'guilty of the offense of rape.' The trial judge then proceeded to assess and declare the punishment, which he fixed at the extreme penalty. Judgment and sentence went accordingly, and the defendant has appealed.

It is not contended that the state failed to make a case for the jury, and inasmuch as defendant's brief wholly omits reference to any fact or circumstance attending the commission of the offense (we presume because not deemed relevant to the questions presented for determination), a detailed statement of such facts is not indicated. The offense is alleged to have occurred on October 18, 1959, at which time defendant states he was 30 years old, whereas his unfortunate child victim, a girl, was 8 years of age. The evidence was such as to have warranted the jury in finding the salient facts to be that about 7:30 p. m., on the evening in question, defendant, by using a candy bar, lured the child into the car he was driving, and away from the Sacred Heart Church's Fall Festival in Troy which she was attending with her parents and three sisters and a brother; he drove her some three miles into the country where he parked the car, and admittedly made repeated unsuccessful attempts to ravish the child, and otherwise had shocking relations (short of penetration) with her; the car was thereafter parked within about a hundred feet of a farm house, one of the occupants of which, at about 8:30 p. m., heard the car's motor idling, and looked out the window where in the darkness she discerned an object moving away from the automobile and toward the house; upon investigation this was found to be the prosecutrix, who was taken into the home, and forthwith returned to her family at the church picnic in Troy. She was taken to a hospital at once and examined, and her condition as described by the examining physician was such as to dispel any doubt of the fact that three had been penetration and extensive damage to the affected part by tearing.

The defendant had been discharged from the U. S. Penitentiary at Atlanta, Ga., only three days before the date of the offense here in question. He was apprehended at Hannibal on the day following the aforesaid Fall Festival. There he signed a statement in which he admitted he had driven the girl some three miles out from Troy where he stopped the car on the shoulder of the blacktop road; that it was at this point where his shocking behavior heretofore mentioned occurred; that he let the girl out in front of a house, and told her to go in and telephone to the church and tell them where she was; that before doing this he gave her an old rag with which to wipe off because she was bleeding; that he discarded this rag on the blacktop. It was later retrieved by the officers, and admitted by defendant to have been furnished by him for the purpose above mentioned. Both this object (in realty, a gray sport shirt) and the cloth covering on the front seat of the car defendant was driving at the time of his arrest contained type 'O' blood stains. The victim has type 'O' blood, while the defendant has type 'A' blood. The defendant testified in his own behalf and denied that he raped the child. He stated that he does not remember anything that occurred between 2:00 p. m. on October 18, 1959, and October 20, 1959, when he found himself confined in the Lincoln County jail.

As his first point, defendant challenges the constitutional validity of Sec. 556.280, RSMo 1949 and V.A.M.S., as repealed and reenacted by Laws 1959, S.B. 117, Sec. 1, because allegedly depriving him of his 'right of trial by jury as heretofore enjoyed,' in violation of Art. I, Sec. 22(a), Const. of Mo. 1945. (This is the sole constitutional provision referred to in developing the point in defendant's brief.) There have been two recent cases in which the constitutionality of the 1959 enactment has been upheld; and in one of them, State v. Morton, Mo., 338 S.W.2d 858, 861, against attack based upon the very constitutional provision here invoked. It was there pointed out that under the provision in question, or somewhat similar provisions contained in our several constitutions since statehood, this court had 'uniformly held that the right of trial by jury as guaranteed by the constitution is the same as the right that existed at common law and that at common law the jury determined the guilt or innocence of the accused and the court fixed the punishment. State v. Hamey, 168 Mo. 167, 67 S.W. 620, 57 L.R.A. 846; State v. Perrigin, 258 Mo. 233, 167 S.W. 573; State v. Johnson, Mo.Sup., 234 S.W. 794. See also 31 Am.Jur., Jury, Section 35, p. 40.' See, also, State v. Griffin, Mo., 339 S.W.2d 803, 806, where, in summarizing the holding in Morton, the court stated: 'It is there held that Sec. 556.280 as repealed and reenacted by Laws 1959, S.B. 117, * * * did not deprive an accused of any constitutional right to have a jury pass on his prior convictions and punishment under the Habitual Criminal Act in contravention of Art. 1, Sec. 22(a), Mo.Const., providing: 'That the right of trial by jury as heretofore enjoyed shall remain inviolate.'' Accordingly, the constitutional issue here raised stands ruled by the cases just referred to, and being entirely satisfied with the correctness of those adjudications, we approve and reaffirm the reasoning and doctrine on which they are based.

The defendant complains that the court unduly restricted interrogation of the prospective jurors on voir dire. The point made in that connection, as set forth in the brief, constitutes a verbatim copy of ground 3 of the motion for new trial, reading as follows:

'3. The Court erred in restricting the interrogation of jurors on their voir dire examination; after the court had interrogated the jury collectively with respect to their qualifications generally, counsel for the State waived its right to interrogate the jurors further. One of defendant's counsel, John M. McIlroy then undertook to examine the jurors individually touching their qualifications to sit in said trial. Among other things counsel interrogated the first juror and inquired of him concerning following his own conscience if he had a reasonable doubt of defendant's guilt if he would maintain said reasonable doubt and vote to acquit him even though all other jurors believed him guilty. This juror answered in the negative and said he would forego his convictions and go along with the other eleven. He was temporarily excused. Counsel then undertook to interrogate the next juror as to whether or not he had formed or expressed an opinion as to defendant's guilt and if he had such an opinion at said time and whether or not it would take evidence to remove the same. He said he had such an opinion and was excused. Two other jurors then indicated that they had such an opinion and were excused. Whereupon, counsel was called to the bench and advised by the court that in the interest of time he would not permit further examination of the other jurors individually upon said subject. Objection was made to the court's ruling and exception saved.'

It will be noted that this assignment fails to state 'wherein and why' the rulings sought to be reviewed are claimed to be erroneous, as required by our rules. But for such breach we do not, in this instance, close our eyes to the assignment, this because of the nature of the case and the severity of the penalty, and because the reasons for such claimed error may be gleaned from the argument portion of the brief, i. e., that such failure 'to permit defendant's counsel to examine jurors on the voir dire individually was a violation of defendant's constitutional right to trial by jury before a fair and impartial jury and did not permit counsel latitude on voir dire for purpose of challenge for cause and reasonable limits for favor.' Examining into the merits of the assignment, we think the record does not sustain the interpretation given by defendant's counsel to the ruling now under attack. The only incidents on voir dire examination preserved in this record which could possibly have any bearing on this particular point are the following:

'By Mr. McIlroy (defendant's counsel): Q. Mr. Purk, you have heard the questions put to the panel by the Court. Now, could you serve on this jury and would you listen to the evidence and instructions of the court and render a fair and impartial verdict? Would you do so if you are left on the jury and if the State fails to prove the charge beyond a reasonable doubt would you acquit the defendant? Would you follow that instruction? Would you have any hesitancy in doing that?

'Mr. Grewach: Your Honor, may we have...