State v. Worden

• Decision Date: 14 December 1932
• Docket Number: No. 32314.,32314.
• Citation: 56 S.W.2d 595
• Parties: THE STATE v. HARRY WORDEN, Appellant.
• Court: Missouri Supreme Court

56 S.W.2d 595

THE STATE v. HARRY WORDEN, Appellant.

No. 32314.

Supreme Court of Missouri, Division 2.

December 14, 1932.

Appeal from Jasper Circuit Court. — Hon. Grant Emerson, Judge.

AFFIRMED.

Geo. V. Farris and Chas. M. Grayston for appellant.

(1) The court erred in overruling defendant's application for continuance for the reasons therein set forth. Defendant was entitled to a fair, impartial trial. Fountain v. State, 107 Atl. 554; Mikle v. State, 213 S.W. 665; Seay v. State, 93 So. 403; McDaniel v. Commonwealth, 205 S.W. 915; State v. Decker, 217 Mo. 315; State v. Taylor, 8 S.W. (2d) 29; Massey v. State, 20 S.W. 758; Collier v. State, 42 S.E. 226; State v. Wilcox, 42 S.E. 536; State v. Weldon, 91 S.E. 29, 39 L.R.A. (N.S.) 667; State v. Kauffman, 46 S.W. (2d) 843. (2) The court erred in overruling defendant's motion to quash the jury panel for the reasons therein set forth. (3) The court erred in giving Instruction 3, because the same is a singling out of certain facts and commenting upon the effect thereof, the court having advised the jury in Instruction 2 of every fact necessary to a conviction. State v. Davis, 190 S.W. 297; State v. Rutherford, 152 Mo. 124; State v. Hibler, 149 Mo. 478.

Stratton Shartel, Attorney-General, and C.A. Powell, Assistant Attorney-General, for respondent.

(1) The verdict is a general verdict and the jury was not required to set forth the age of the prosecuting witness or any other element of the offense. State v. Morris, 279 S.W. 144; State v. Cutter. 1 S.W. (2d) 98; State v. Jordan, 225 S.W. 907; State v. Williams, 191 Mo. 205; State v. Bishop, 231 Mo. 415. (2) The word "feloniously" need not be used in an instruction where the jury is required to find the facts which constitute a felony. State v. Frost, 289 S.W. 895; State v. Miller, 190 Mo. 449.

WHITE, P.J.

The appeal is from a death sentence upon conviction in Jasper County, of rape. The information charges that the offense was committed by defendant upon Bettie Hefley, a girl under the age of sixteen years.

The evidence shows that November 5, 1931, about 7:30 in the evening. Bettie Hefley, fifteen years of age, and Catherine Morris, sixteen, with George Mimms and Norman Parks, both young boys, all of whom lived in Carthage, went for a ride in a Ford automobile. They drove about four miles from Carthage and parked their car in or near an abandoned mine which was about a half mile from the highway. They had been parked only a short time when three men drove up in a Chevrolet. These men were Harry Worden, the defendant here. Lew Worden, his brother, and another man named Paul Stevenson. They approached the four each with a gun in his hands, ordered them out of the Ford and searched them. They took a bill fold from one of the boys but it contained no money. They searched the two girls also. One of the men then at the point of a gun forced the two boys, Parks and Mimms, to go to another part of the mine. They seemed to have been out of hearing of the other four. The defendant, Harry Worden, then took Bettie Hefley a short distance apart and with threats to kill her friend Catherine Morris forced her to submit to his ravishment. The robbers then drove away in both cars.

The girls made their way to a farm house and were taken to town where the Hefley girl was examined by a physician who found that the offense had been committed. The Wordens and Stevenson later were arrested and identified. Harry Worden admitted to the officers who arrested him that he had committed the act charged. Nowhere in the trial was it denied. The information was filed January 4, 1932. January 30, 1932, a jury returned a verdict of guilty.

The defendant had no attorney. Three attorneys were appointed for him by the court. They strenuously contend in their motion for new trial that the defendant did not have a fair and impartial trial, and it becomes necessary, in view of the extreme severity of the penalty, to examine the record with care.

[1, 2] I. January 28th the defendant filed an application for continuance which stated that he was unable to employ counsel; that the court had appointed George V. Farris and Charles M. Grayston to defend him.

The application stated that the day before, January 27th, Lew Worden, the brother of this defendant, entered a plea of guilty in that court to another rape and was sentenced to be hanged; that the defendant was not connected with that offense; that at the time of the sentence Judge Harvey Davis stated in open court that the crime was one of the most hideous known to the law and that it was the duty of the court to sentence that defendant to death; that the courtroom was packed with people and "a number of jurors duly empancled for service this week at this term of court were in the courtroom and heard the sentence imposed upon Lew Worden;" that thereafter the Joplin News-Herald, a newspaper of general circulation published in the City of Joplin published in flaming headlines in its afternoon edition: "Lew Worden sentenced to hang."

The application further stated that Monday, January 25, 1932, the Hon. Howard Gray, former Judge of the Circuit Court and of the Springfield Court of Appeals, and a lawyer of long standing in Jasper County, in the hall of the courthouse where the jurors were, made bitter and caustic remarks saying in effect that justice had broken down in Jasper County, and that this defendant as well as his brother should be hanged, and other like remarks. The application then declared that "on Tuesday and Wednesday of this week" the case of the State of Missouri v. King was in progress; that King was charged with the crime of rape, and that a number of jurors have heard part of the testimony in that case. The application closes with this statement:

"Defendant further states that by reason of being confined in the Jasper County jail he has been unable to procure any witnesses in his behalf, but that if this cause should be continued until the next term of this court defendant would be enabled to procure witnesses and be enabled to obtain a fair and impartial trial of this cause at the next term of this court."

On the same day the defendant filed a motion to quash the jury panel. That motion states the same facts as in the other motion regarding sentence of Lew Worden and the circumstances attending it. In addition it stated that the case was originally set for January 25th, and the same panel of jurors was present and were congregating in the hall of the courthouse, not being confined in the jury room, and that the case of this defendant was being discussed by the bystanders who were mingling freely with the members of the jury, and that various persons made statements within the hearing of the members of the jury panel that the defendant should be hanged without a trial.

If the facts stated in the application for a continuance and in the motion to quash were true the trial court in the exercise of its discretion could properly have granted the continuance, which would in effect make it unnecessary to sustain the motion to quash. But the statements in such a motion for continuance do not prove themselves. It is true that the motion was verified by the defendant himself but it is not stated that he was present and heard anything said when his brother was sentenced, or that he heard Judge Howard Gray make the speeches said to have been made, or that he heard the other statements in the hall by bystanders in the presence of members of the jury. It is quite apparent that he was not present at any of those times because he was in jail and his own case did not come up until afterwards. Even if his unsupported verification could be taken as proof of such facts if made of his own knowledge, which we do not decide, the fact that it was not upon his own knowledge but upon information leaves an entire absence of proof.

Further it is quite apparent that the facts alleged, if true, were susceptible of definite proof. If any of those things occurred as alleged, many persons were present and heard them, and affidavits could have been obtained as to whether they occurred and whether any of the jury panel heard any of them. So the allegations of both motions rest entirely without proof when proof was amply available if they were true.

[3] Furthermore the Bill of Exceptions recites:

"Thereupon a number of jurors were examined upon their voir dire examination by the prosecuting attorney and by counsel for the defendant, and a panel of thirty qualified jurors were qualified and passed by the prosecuting attorney and by counsel for defendant."

Nothing further in the record appears about the voir dire examination of the jury. The jurors were "passed" by counsel for defendant. It must be inferred that the jurors were interrogated as to any possible reason for disqualification, including all the incidents mentioned in those motions and they qualified to the satisfaction of the defendant's counsel. It is not stated that a single juror was challenged for cause. The record shows a statement of the trial judge:

"If the court has the least suspicion the prospective jurors cannot give this defendant a fair trial the court has a way to summon additional talesmen to complete the panel and the court will certainly exercise that right."

That, in fact, was done. Twelve additional talesmen were added to the panel, and no objection is noted to any of them.

In the absence of any showing to the contrary we must presume that a fair and impartial jury was selected according to law. [State v. Perno, 23 S.W. (2d), l.c. 88, 89; State v. Hart, 331 Mo. 650, 56 S.W. (2d) 592.]

[4] One statement in the motion for continuance which appeared to give the court further concern was that by reason of being confined in the county jail the defendant was unable to procure witnesses in his behalf and that if the cause were continued another term he would be enabled to procure witnesses so as to obtain a fair and impartial...