State v. Ybarra, 50391
| Decision Date | 08 February 1965 |
| Docket Number | No. 50391,No. 2,50391,2 |
| Citation | 386 S.W.2d 384 |
| Parties | STATE of Missouri, Respondent, v. Robert Maladolado YBARRA, Appellant |
| Court | Missouri Supreme Court |
Thomas F. Eagleton, Atty. Gen., Jefferson City, Edward A. Glenn, Sp. Asst. Atty. Gen., Louisiana, Mo., for respondent.
J. K. Owens, Kansas City, for appellant.
BARRETT, Commissioner.
The appellant, Robert M. Ybarra, age 39, with a prior felony conviction in New Mexico of 'indecent exposure' to a minor (N.mex.R.S.1953, Sec. 40-31-21; 1 RSMo 1959, Sec. 563.160, V.A.M.S.) has now been found guilty of the offense of statutory rape upon Sheila, a child ten years old, and sentenced by the court to 15 years' imprisonment. RSMo 1959, Secs. 559.260, 556.290, V.A.M.S. In appropriate language an amended information charged the prior offense in New Mexico (State v. Brewer, Mo., 338 S.W.2d 863) and substantially in the language of the statute that on January 6, 1963, Robert Ybarra 'in and upon one Sheila * * * a female child under the age of sixteen (16) years, to wit: of the age of ten (10) years, did make an assault upon her, the said Sheila * * * then and there did unlawfully and feloniously carnally know and abuse her * * *.' State v. Trumbull, Mo., 182 S.W.2d 524.
These in brief were the facts as the jury could reasonably find them: Sheila's older sister, Cecilia, age 16, against the express command of her father but disapprovingly known to her mother, was surreptitiously 'dating' the appellant Ybarra and had been for almost a year. On Sunday January 6, 1963, about 6 o'clock in the afternoon, after a telephone call, Cecilia asked her mother's permission to go with Bob (Ybarra) to Katz Drug Store. At the same time she asked if Sheila 'could ride along with them,' promising that they would return before 8 o'clock, Sheila's bedtime. The mother assented and Ybarra picked the girls up on the corner where Cecilia 'usually met him.' They stopped at Katz Drug Store and Ybarra went in alone for a few minutes and then drove on to his apartment at 424 Askew. Cecilia and Bob 'went up to' his apartment and in a few minutes he returned to the automobile with a sweater he had promised Sheila, reporting that Cecilia was cleaning his apartment. Ybarra got in the car and drove off with Sheila and, she says, 'he drove to Cliff Drive, and he had told me before that I had some kind of disease, and when I grew up it might--I might be blind or I might die, and then he said he had to examine me, and he said that I couldn't go to a doctor because my mother or father had to be with me, and so then he laid me down in the front seat of the car and took off my pants, and then he took off his.' It is not necessary to further set forth the details, despite Sheila's screams Ybarra proceeded to rape her. Sheila bleeding profusely 'told him I had to go to the bathroom and he wouldn't take me to a decent place so I could go, he made me go up on a hill, and then I discovered blood all over my dress and I started screaming' and then he drove to a street corner near her home and let her out with a warning that if she said anything 'I'd get my big sister in trouble.' It was then about 7 o'clock and Sheila's mother soon discovered the bloody clothes and called her husband's attention to her condition and he called the police. The police and her father took Sheila to a hospital and later, under anesthetic, she was examined by a gynecologist who described her considerable injuries.
The facts have been recited in this manner not alone to indicate that the evidence plainly supports the charge and finding (State v. Trumbull, supra) but to refute as a matter of fact the assignments of error briefed and argued by present counsel for the appellant. The court gave an instruction which told the jury that 'the intent with which an act is done' may be proved by direct evidence or inferred from all the facts and circumstances. Because the court gave that instruction it is now urged that the court prejudicially erred in not also giving 'a circumstantial evidence instruction.'
It may be noted in passing that age is the essential element in statutory rape (State v. Baker, Mo., 276 S.W.2d 131) and intent and motive play but little if any part in the substantive offense. State v. Hersh, Mo., 296 S.W. 433. But it is not necessary to a disposition of this appeal to consider whether the...
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