State v. Wynn, 49096
| Citation | 357 S.W.2d 936 |
| Decision Date | 14 May 1962 |
| Docket Number | No. 1,No. 49096,49096,1 |
| Parties | STATE of Missouri, Respondent, v. Virgil Major WYNN, Appellant |
| Court | United States State Supreme Court of Missouri |
Virgil Major Wynn, pro se.
Thomas F. Eagleton, Atty. Gen., Phillip C. Houx, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
HOUSER, Commissioner.
A Jackson County Circuit Court jury found Virgil Major Wynn guilty of rape and fixed his punishment at two years' imprisonment in the penitentiary. Defendant obtained a special order permitting appeal under Supreme Court Rule 28.07, V.A.M.R. The case was submitted here without oral argument upon briefs filed by the state and by defendant, pro se.
The state introduced evidence from which the jury could have found the following facts: Prosecutrix, a female of the age of 17 years, was registered with Mack's Employment Office in Kansas City. On October 12, 1960 she received a call from the agency directing her to go to 1415 Holmes Street, there to baby-sit for a couple so they could go to work. Cab fare was promised. Prosecutrix took a cab and upon arrival at that address a Negro man (identified by prosecutrix at the trial as the defendant) came out of the building, paid the cab driver and returned. Then prosecutrix and the man entered the building. She followed him up the stairs to the landing on the second floor. On some pretext he took a position behind her. Suddenly and without warning prosecutrix was struck a blow on the top of the back of her head by an object which looked like a broomstick. When prosecutrix 'sort of screamed' the man said 'If you don't shut up I'll finish killing you.' He then told her to take down her pants and undergarments, which she did. He took off one of her shoes and one red sock and told her to 'lay down.' She refused 'so he picked up his stick again,' whereupon she said 'I'll sit on the step.' He told her to sit on the second step from the bottom of the flight of stairs leading from the second floor landing to the third floor. She did so, and he told her to open her legs, which she did. Then he 'put his private parts into [her] private parts' for five minutes. When he had finished the intercourse he left the building. Blood from her head ran down onto her blouse, the steps, the landing, and got on her jeans and upon the wall while she was putting her clothes on. After dressing she grabbed her shoe, ran down the steps and out of the building, leaving the one red sock in the building, and ran to a drugstore at 15th and Charlotte, a block or more distant from 1415 Holmes. At the drugstore she 'told the lady what happened.' The police were called. They found her in a state of apparent shock, bleeding from the laceration on her head. Her blouse was soaked with blood. She had blood smears on the rest of her clothing. At the drugstore she was unable to explain what happened, because of nerves and shock. By ambulance she was taken to General Hospital where she was examined and treated. She was at the hospital two hours. Prosecutrix testified her head lacerations were treated and that she also was examined 'down there' and received treatments 'on the lower part' of her body. The interne in the emergency room testified he found only a scalp laceration, an inch long, repaired by taking four sutures, but that he did no other type of examination--no gynecological examination. At the hospital prosecutrix told police officers what happened, whereupon the officers went to 1415 Holmes, a vacant house. They found blood-stains on the landing and stairs leading to the third floor; three or four spots of another substance described in the transcript; 'a blood mark that resembled the buttocks of a person who had been sitting on the step there'--a 'buttocks imprint.' The stains on the floor were fresh but the wood was dry and unvarnished and the blood had seeped into the wood, making it impossible to lift the material for lab inspection because 'it soaked into the wood like a blotter'. They found one red sock at the bottom of the stairs leading to the third floor. They called the laboratory car, and photographs were taken. A police officer testified that prosecutrix described her assailant as a colored male approximately 20 years of age, five feet eight inches in height, weighing 140 pounds, with bushy hair. At the trial prosecutrix testified that her assailant was about five feet seven inches tall, age about 25 years, a medium-dark Negro with a 'high-bridge' nose. She said he had pretty black 'real bushy' hair which was long and did not look like it had been combed; that he was wearing an egg-shell-colored coat with no hat. The day after the occurrence prosecutrix picked out of the police book the pictures of two other Negroes, identified 'on the basis of their hair,' which was long and bushy, but at the trial she testified that these other two men were 'not the man.' From six photographs, including one of the defendant, shown to her by police eighteen days after the occurrence, prosecutrix definitely identified the photograph of defendant as the man who assaulted her. 'Just the minute she saw him in the picture she said 'There's the man, right there." At the trial, after having been impressed with the seriousness of the matter, she testified that she was 'certain' that the defendant in the courtroom was the man who had raped her. Three photographs of the steps, landing, and walls, taken by the police investigators, were identified by prosecutrix as the place where the assault occurred. They showed stains and spots, which she said was blood from her head, and other spots described by the officers. They showed two prints on the second step, an outline of a person's buttocks and three finger marks in the blood.
Appellant complains that the evidence was inconsistent; that there was no proof that appellant committed the offense charged, or of any overt act by appellant in connection with the offense, or that placed him at the scene of the crime. Appellant does not specify in what particular the evidence was inconsistent, simply asserting that when 'the court inquired what position was she in at the time of the assault she replied that she was sitting on the steps with her legs open.' We find no inconsistency in this testimony, and we are not obliged to search the record for other unspecified inconsistencies. The testimony of the cab driver and prosecutrix definitely placed appellant at the scene, and prosecutrix' testimony was substantial evidence that appellant committed this crime.
Appellant complains that the information 'does not allege any date of such offense as charged, nor upon whom nor where, and therefore is totally insufficient to sustain the * * * sentence * * *.' The following quotation from the information completely refutes this point: '* * * VIRGIL MAJOR WYNN * * * on the 12th day of October, 1960, at the County of Jackson, State of Missouri, did then and there in and upon one [naming the prosecutrix], unlawfully, violently and feloniously did make an assault, * * *,' etc.
Appellant's complaint that there was no evidence of immediate outcry is without substance, for...
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