The State v. Donnington
| Decision Date | 10 December 1912 |
| Citation | 151 S.W. 975,246 Mo. 343 |
| Parties | THE STATE v. F. H. DONNINGTON, Appellant |
| Court | Missouri Supreme Court |
Appeal from Bates Circuit Court. -- Hon. C. A. Calvird, Judge.
Reversed and remanded.
Silvers & Silvers and W. O. Jackson for appellant.
(1) The testimony of the prosecuting witness was so unreasonable contradictory and inconsistent that the jury should have been instructed at the close of the State's case or after the introduction of all the testimony to acquit the defendant. State v. Prendible, 165 Mo. 353; State v Huff, 161 Mo. 487; People v. Lyons, 51 Mich 215. (2) Dr. Hall had been a physician 38 years, knew the prosecuting witness had not reached the age of puberty, knew her size, also had made a physical examination of defendant in February, 1910, about the time of the alleged offense. He should have been permitted to tell whether or not defendant could have had sexual intercourse with the prosecuting witness. 17 Cyc. 36; Seckinger v. Mfg. Co., 606; Hardman v. Brown, 162 Mass. 585; State v. Cole, 63 Iowa 695; Lowe v. State, 118 Wis. 641; Allen v. Voje, 114 Wis. 1. (3) Defendant should not have been cross-examined about the visit to Clara Hussy or about his conversation if any with Paul Jenkins concerning Clara Hussy. This was new matter not referred to in his examination in chief. R.S. 1909, Sec. 5242; State v. McGraw, 74 Mo. 573; State v. Patterson, 88 Mo. 88; State v. Bulla, 89 Mo. 598; State v. Graves, 95 Mo. 513; State v. Hathhorn, 166 Mo. 229; State v. Kyle, 177 Mo. 663; State v. Grant, 144 Mo. 63. (4) The motion to strike out the testimony of Jenkins which referred to the visit of Donnington to Clara Hussy and his conversation about her should have been sustained. It appeared on his cross-examination that the visit, if any, and the conversation, if any, was in the spring of 1908, and not at the time laid in the impeaching question to Donnington in February, 1910. (5) The defendant cannot be impeached, nor can a ground of impeachment be laid by asking him questions relative to matters not inquired into in his examination in chief. This would deprive him of his rights under Sec. 5242, R.S. 1909. State v. Bulla, 89 Mo. 595; State v. Grant, 144 Mo. 56. The testimony was not proper for the purpose of impeachment. Its only tendency was to establish the bad character of defendant by a single act of moral delinquency which is not permissible. State v. Taylor, 98 Mo. 245. When the State desires to impeach a defendant there are three known ways of doing so, viz.: (a) By proof of his general bad reputation. State v. Baker, 209 Mo. 444; State v. Pollard, 174 Mo. 607; State v. Rider, 90 Mo. 54; State v. Beckner, 194 Mo. 281. (b) By proof of other crimes committed by him where he has been convicted tending to effect his credibility as a witness. This can be done in two ways: By the record of the conviction. By asking the defendant on cross-examination whether he has been convicted of other offenses as permitted under Sec. 6383, R.S. 1909, as to ex-convicts. State v. Arnold, 206 Mo. 597. (c) By showing that defendant has made former statements inconsistent with his statements made on the witness stand, but these statements so made by him must be such as he made in his examination in chief or on his cross-examination properly and lawfully conducted under the limitations of Sec. 5242, R.S. 1909, and the judicial construction placed thereon. State v. Bulla, 89 Mo. 595; State v. Grant, 144 Mo. 63. (6) The verdict was evidently prompted by passion and prejudice and was not the result of a calm consideration of the facts in evidence. State v. Prendible, 165 Mo. 353; State v. Huff, 161 Mo. 487; State v. Primm, 98 Mo. 368; State v. Castor, 93 Mo. 242; State v. Jaeger, 66 Mo. 173; State v. Bugdorf, 53 Mo. 65; State v. Marshall, 47 Mo. 378; State v. Mansfield, 41 Mo. 470; State v. Brosious, 39 Mo. 534; State v. Packwood, 26 Mo. 340.
Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
(1) The prosecutrix was but a girl 13 years of age at the date of the alleged crime. Her testimony is perfectly consistent, reasonable and is corroborated by a number of facts testified to by appellant's witnesses. Appellant's own wife testified that she was absent from her home on several occasions, leaving the prosecutrix and appellant there. The credibility of the prosecutrix's testimony was a question for the jury. The court submitted this issue to the jury by proper instructions. The jury believed the evidence as given by the prosecutrix, and disbelieved appellant's testimony, denying the commission of the crime. (2) The question asked Dr. Hall had reference to treatment rendered appellant by Dr. Hall on a diagnosis for "general debility" and kidney trouble. It had no reference to any treatment for impotency. Furthermore, the assignment cannot be reviewed, as the record does not contain any statement as to what appellant expected the answer to this question would be. State v. Arnold, 206 Mo. 589. (3) Dr. Hall had made no examination of the prosecutrix. He says he was only in "speaking distance of her" one time, and that was in the month of September, prior to the date of the alleged crime. The court only sustained the objection to the question calling for the opinion of Dr. Hall for the time being, thereby intimating that by laying the proper foundation, he would permit such question to be answered. The record discloses that the doctor was not treating appellant for impotency at that time, and, in fact, knew nothing about his having such a complaint. This assignment is devoid of any merit, and cannot be reviewed, as the record does not contain any statement as to what appellant expected the answer would be to this question. State v. Arnold, supra. Appellant testified that he was impotent at the time of the alleged offense, and had been since the year 1908. To impeach this testimony, it was competent to cross-examine him as to his visit to one Clara Hussy, a woman of ill-repute. It was also competent to prove what appellant told the witness, Jenkins, concerning his proposed illicit intercourse with said woman. This grew out of the direct examination, although not specifically referred to by the witness, and is clearly within the proper range of cross-examination of the appellant under our statute. State v. Miller, 190 Mo. 461; State v. Avery, 113 Mo. 498; State v. Wertz, 191 Mo. 579; State v. Barrington, 198 Mo. 71; State v. Miller, 156 Mo. 85.
The defendant was tried in the circuit court of Bates county, at the February term, 1911, under an indictment containing two counts. The first count charged him with carnally knowing Esther Cronkhite, a female child under the age of fourteen years, and the second charged him with defiling Esther Cronkhite, a female under eighteen years of age, who had been confided to his care. The jury returned a verdict of not guilty on the first count and a verdict of guilty on the second. Defendant was sentenced to four years in the penitentiary and appealed to this court.
The evidence for the State tended to show the following facts:
At the time of the alleged offense the defendant was thirty-seven or thirty-eight years of age and weighed over two hundred pounds. He was a hardworking man, had been married three times and had a daughter eighteen years of age. His second wife died in March, 1907, and in May of that year he married her sister, who had been making her home at his house prior to the death of his second wife.
In August, 1909, defendant and his wife went to Kansas City and procured, through the mediation of the Detention Home, three children of one R. T. Cronkhite, a laborer, whose wife was dead. The children were Esther, the prosecutrix, who was twelve years of age on January 2, 1909, Forest, a boy aged ten, and Alice aged two. The arrangement made with the father of the children was that defendant and his wife were to take them and care for them as their own. The children were taken to defendant's home on a farm in Bates county and all three remained there until Christmas, 1909, when the father went to visit them and insisted on taking the youngest back home with him. A few days later he did take the baby to his home in Kansas City, and did not see Esther or Forest again until after the indictment herein was returned.
The testimony of the prosecutrix was to the following effect:
The defendant "took advantage" of her five times during February and March, 1910; once during the first week in February, three times in the latter part of that month, and once on the first day of March. On each of these occasions her brother Forest, the defendant's wife, and Mahan, a farm-hand, employed by defendant, were all away from defendant's home, leaving defendant and her alone in the house. The first three times defendant's wife had gone to town and the last two times she was visiting a neighbor. When the second offense was committed, which was in the latter part of February, Mahan was in the field plowing corn. The first time defendant "took advantage" of her he called her upstairs, in the daytime, caught her by the hands, laid her on the bed and attempted to ravish her. She screamed, fought and resisted in every way she could and he did not accomplish his purpose. When, about three weeks later, he did succeed in defiling her, and also on three subsequent occasions when he forced her to yield to him, the circumstances were precisely the same as at the time of the first assault; defendant either called or sent her upstairs to the same room, in the daytime caught her by the hands, laid her on the bed and forcibly ravished her, while she resisted in just the same...
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