The State v. Burlison

• Decision Date: 25 June 1926
• Docket Number: 26959
• Citation: 285 S.W. 712,315 Mo. 232
• Parties: The State v. Joe Burlison and Sam Jones, Appellants
• Court: Missouri Supreme Court

285 S.W. 712

315 Mo. 232

The State v. Joe Burlison and Sam Jones, Appellants

No. 26959

Supreme Court of Missouri

June 25, 1926

Appeal from Circuit Court of City of St. Louis; Hon. Wilson A Taylor, Judge.

Affirmed.

Campbell Allison for appellants.

North T. Gentry, Attorney-General, and James Donald Purteet, Special Assistant Attorney-General, for respondent.

(1) The indictment follows the statute and sufficiently informed the defendants of the charge they had to meet. Sec. 3247, R. S 1919, Laws 1921, p. 284a; State v. George, 214 Mo 216; State v. Harris, 150 Mo. 61; State v. Hutchens, 271 S.W. 525; State v. Lorton, 271 S.W. 384. (2) The verdicts were in approved form, finding each defendant guilty as charged and separately assessing the punishment. This is sufficient. Secs. 4046, 4047, R. S. 1919. (3) The record discloses that the objection to the indictment was made for the first time in the alleged motion in arrest. This is insufficient. (4) The trial court properly refused to admit testimony of witness Reese and others as to prior specific acts and conduct of prosecutrix to show her reputation for truth and veracity. The witnesses were permitted to testify after qualification as to her reputation for truth. Appellant's counsel sought to have them testify to her acts and conduct prior to the commission of the alleged crime. (5) The trial court properly overruled appellant's application for a continuance. Mere record entry of the application is insufficient for the purpose of gaining a review of the point. State v. Henson, 290 Mo. 238; State v. Belknap, 220 S.W. 44. (6) Appellant's demurrer to State's evidence was properly overruled, as there was ample substantial testimony to justify the trial judge in sending the case to the jury. The demurrer was waived by introduction of testimony in support of their defense. State v. Lackey, 230 Mo. 707; State v. Parr, 296 Mo. 406.

OPINION

Blair, J.

Appellants and one Thomas Darmody were jointly indicted for and appellants were convicted of the crime of rape. Darmody escaped. The jury assessed their punishment at imprisonment in the penitentiary for terms of twenty years each and they have appealed to this court from the judgment entered on such verdict.

The alleged rape was perpetrated upon one Ruby Gray, a female child slightly under thirteen years of age at the time. It occurred in the city of St. Louis on May 7, 1924. We will endeavor to state the facts without going into revolting details.

From photographs accompanying the transcript, it is evident that 816 South Eight Street in St. Louis, where the alleged assault was committed, cannot be regarded as a particularly desirable residence section of the city. Nor would the principal actors and witnesses likely feel at home among the "best families" of the city.

Appellant Burlison admitted that he had been charged with highway robbery, pleaded guilty to a lesser offense, and was sentenced to and served a term in the city workhouse. Appellant Jones confessed to having served three different terms in the penitentiary. Ruth Short, one of the main witnesses for the State and sixteen years of age, was shown to be and admitted being a young woman of easy virtue. Mary Anderson, in whose home of two rented rooms the alleged assault occurred, was not shown to have been personally immoral, but was evidently at home among her immoral associates and permitted visitors in her home to conduct themselves improperly without protest. Ruby Gray, the prosecutrix, does not appear to have been accustomed to refined surroundings. She is introduced as a truant from school loitering at midday and alone about the grounds where a carnival was being held.

The State's evidence tends to show that this carnival was being held on some vacant lots at Seventh Street and Chouteau Avenue. The rear of the building, two rooms of which were occupied by Mary Anderson, her husband and her children, faces east and adjoined the carnival grounds on the west. Ruby Gray was "playing hookie" from school and was loitering about the carnival grounds. She testified that appellants approached her on the carnival grounds and that Burlison asked her if she wanted some wine. She declined and Burlison took her by the arm and forcibly led her into the house. Apparently appellant Jones had already gone on into the house. In the kitchen of the Anderson home were appellant Jones, Tommy Darmody, Ruth Short, Mary Anderson, her little children, and probably a man known as "Blackie." Mary Anderson's husband was absent, supposedly at work somewhere, and does not appear to have returned prior to the arrest of appellants.

When Burlison got Ruby Gray inside the house she was crying. She sat down on a chair and then Burlison took her forcibly into the bedroom adjoining and ravished her. When he had finished, Jones did the same, Burlison holding her down on the bed until Jones began his assault. In like manner Darmody followed Jones. Ruby was then taken to the door of the hall leading to Eighth Street. She ran away from the building. Mrs. Truly Calix, who occupied the two front rooms on that floor and against whom nothing appeared outside of her bare residence in such squalid surroundings, testified that appellants "chased" Ruby from the house. Ruby ran away and turned back to the carnival grounds and was sitting on a wagon when two police officers approached her and asked her what she was doing there. Upon being asked if she came out of the house at 816 South Eighth Street, she said she did and told the officers what had happened to her there. They took her to Mrs. Anderson's rooms and there found appellants and Darmody, as well as Mrs. Anderson and Ruth Short. Ruby pointed out appellants and Darmody as her assailants and they were put under arrest. One of the officers went out to call a patrol wagon. In his absence Darmody bolted out the back door and escaped. The remaining officer fired a shot at him, but did not succeed in stopping his flight. He had not been apprehended before appellants were put on their trial.

Appellants, Ruby Gray, Mary Anderson and Ruth Short were all taken to the police station. The officers took Ruby to the city physician, who examined her and testified to facts, which were not disputed, showing a fresh rupture of her hymen. There were also fresh male secretions. He said her appearance would be the same whether she was violated by one man or by three men. This physician used the name of Ruth Short as the female examined by him. This was evidently an inadvertence on the part of counsel or the witness, or a mistake of the reporter. It clearly appears that the female examined was the prosecutrix. Ruth Short was admittedly not a virgin. It appears that it was Ruby Gray who was taken by the officers to the physician for such examination. The jury could hardly have been misled by the mistake in the name used, in whatever manner such mistake occurred.

Ruth Short testified that Burlison brought Ruby Gray into the kitchen, that she was crying and looked scared; that he then took her into the bedroom and closed the door, and was followed by Jones and Darmody. She suspected what was going on in the room. She said each man stayed in there with Ruby about an hour. Ruby Gray testified that the act of each man consumed about a half hour. The time fixed by each of the girls was doubtless longer than the time actually consumed in the sexual assaults, if they occurred. Both of the girls appeared to have been very ignorant. Ruby was in the fourth grade at school.

Mary Anderson and both of the appellants positively denied that Ruby Gray was ever in the Anderson rooms at any time until the officers brought her there at the time she identified appellants and Darmody as her alleged assailants. Appellants further denied making any assault upon her. The testimony of Ruby Gray and of Ruth Short as to the presence of Ruby Gray in the building and as to her being seen with appellants was corroborated by Mrs. Calix, who was entirely disinterested, so far as disclosed by the record. Mary Anderson was asked if and denied that she had suggested to Mrs. Calix that she had better not testify against appellants, because they would "get her." Mrs. Calix was recalled and testified to the occurence of such attempt to intimidate her. It appeared that Mary Anderson at first attempted to say that she did not know Burlison. She admitted at the trial that she was raised with him in Illinois.

There was testimony tending to show that Ruth Short came to the Anderson rooms the night before the alleged assault with a man known as "Blackie" and introduced him as her husband. She was so intoxicated, according to the testimony of Mrs. Anderson, that she was required to keep her all night. Ruth Short denied that Blackie was her husband, but admitted that she had allowed Mrs. Anderson to introduce her to her own (Mrs. Anderson's) mother as Blackie's wife.

According to Ruth Short's testimony, at least Burlison, Jones and Blackie stayed in Mrs. Anderson's kitchen all of the night before the alleged assault on Ruby Gray. She said she slept in the bedroom with Mrs. Anderson, her husband and the children, and slept in the same bed with Anderson and his wife. She testified that intoxicating liquor was consumed by the party during the night and on the morning of the assault.

Burlison and Jones testified that they had an engagement to meet Mrs. Anderson's husband at 1:30 P. M. on May 7th, to discuss details about their going into the huckster business. Anderson was not there and they waited for him to come home from work. Ruby Gray fixed the time when she was taken into the house by Burlison at about noon.

It appeared from the evidence offered by appellants that three or four men from the carnival came...