The State v. Gurnee

• Citation: 274 S.W. 58,309 Mo. 6
• Decision Date: 05 June 1925
• Docket Number: 26132
• Parties: THE STATE v. EVERETT M. GURNEE, Appellant
• Court: United States State Supreme Court of Missouri

274 S.W. 58

309 Mo. 6

THE STATE v. EVERETT M. GURNEE, Appellant

No. 26132

Supreme Court of Missouri

June 5, 1925

Appeal from Jackson Circuit Court; Hon. J. H. Austin Judge.

Affirmed.

Ernest Poindexter for appellant.

(1) The court erred in refusing to instruct the jury at the close of all the evidence in the case to acquit the defendant. The evidence wholly failed and the corroborating witness is wholly unbelievable and the testimony of Viola May Gurnee fails because she could not see the bed through the keyhole. State v. Guye, 299 Mo. 350; State v Osborn, 246 S.W. 879; State v. Lasson, 292 Mo 155; State v. Allen, 290 Mo. 258; State v. Gesell, 124 Mo. 531. (2) The court erred in not giving instructions covering all points of law involved in the case, whether asked for or not, and erred in not giving instructions in converse to its Instruction 2. State v. Branstetter, 65 Mo. 149; State v. Wilkins, 221 Mo. 450; State v. Levitt, 278 Mo. 200; State v. Rutherford, 152 Mo. 125; State v. Jackson, 126 Mo. 58. The converse should have been set out in Instruction 2 similar to the way used and approved in State v. Dougherty, 287 Mo. at page 125. Instruction 2 given by the court is not fair to the defendant, and to the average mind it cannot be anything but a direction to convict the defendant, if they find the facts so stated in the instruction, and does not permit the jury to acquit unless they so find the facts as stated in the instruction. (3) The court erred in permitting the prosecuting attorney to ask witnesses for the defendant, and requiring them to answer, the following: "Have you heard, or had you heard, rumors to the effect that this defendant had compelled his other children to do what he compelled Albert Gurnee to do?" This was a vicious question and required defendant to combat rumors, and brought into the case other and independent crimes not designated in the indictment. The prejudice engendered in the jury cannot be accurately measured by such questions, and violates all the rules of evidence, the Constitution of the State and the rulings of all courts. State v. Wellman, 253 Mo. 315; State v. Craft, 246 S.W. 930; State v. Lyons, 215 S.W. 484; Sec. 22, Art. 2, Mo. Constitution; State v. Tilter, 239 Mo. 475.

Robert W. Otto, Attorney-General, and Harry L. Thomas, Special Assistant Attorney-General, for respondent.

(1) The information follows the statute and fully informs the accused of the charge. R. S. 1919, sec. 3512. (2) The evidence was sufficient, there being the direct testimony of the injured party. In addition, his testimony was strongly corroborated by that of his sister. A judgment will be reversed for insufficient evidence only if the evidence appears incredible and too unsubstantial to make it the basis of a judgment. State v. Guye, 299 Mo. 350, 370; State v. Cason, 252 S.W. 688. (3) It was not error to permit cross-examination of appellant's character witnesses as to whether they had heard rumors that the appellant was the author of other offenses. Such cross-examination tended to weaken testimony of the good reputation of appellant for morality and was proper. State v. Cooper, 271 S.W. 471; State v. Harris, 209 Mo. 443; State v. Parker, 172 Mo. 207; State v. Phillips, 233 Mo. 305; State v. Seay, 282 Mo. 676. (4) While it is the rule that the converse of the principal instruction unless the instruction as given contains a converse must be given upon proper request and the submission of a proper instruction, the rule does not appear to have been extended to require a converse instruction merely upon an exception to the failure of the court to instruct on the converse of such principal instruction. In the present case no request was made and no instruction was offered. The exception only appears in the record.

OPINION

Blair, J.

Defendant was convicted in the Circuit Court of Jackson County of the detestable and abominable crime against nature. The jury assessed his punishment at imprisonment in the State Penitentiary for a term of two years. From the judgment entered upon such verdict, he has appealed.

The defendant was a widower living in Kansas City with his two daughters and son and a housekeeper and her two little girls. Helen was the oldest child of defendant and was fourteen years of age. The ages of Viola May and Albert were given as twelve years. However, defendant gave Viola May's age as eleven years, and she was probably younger than Albert.

Defendant was a carpenter and shingling contractor. His wife died in October, 1918. For a time after her death, the maternal grandmother, Mrs. Rude, kept the children. They were also kept for a while at the home of defendant's brother. They were frequently at Mrs. Rude's for short visits.

Defendant testified, and there is other evidence of the same sort, that his wife's mother objected to his marriage and had ever afterward borne ill will toward him. The children were more fond of their grandmother and her husband, their step grandfather, than they were of the defendant. It also appears that the two younger children disliked defendant's housekeeper and would not obey her, and their reported disobedience resulted in punishment at defendant's hands. A neighbor, Mrs. Bibbs, washed and sewed for defendant and his children and they were fond of her. It seems that defendant objected to Albert and Viola May going to Mrs. Bibbs' house and going with her to moving picture shows. There was some proof offered to the effect that Mrs. Bibbs's reputation for morality was bad. Because of ill-feeling between defendant and his mother-in-law, she communicated with Mrs. Bibbs as to the welfare of defendant's children, instead of calling defendant on the telephone and talking to him. Defendant apparently resented this.

The foregoing facts have been recited to show the feelings of the parties and the setting of the alleged crime. Most of the testimony, covering about 125 typewritten pages, was devoted to the state of feelings existing between the defendant and his housekeeper on the one hand and Grandmother Rude and her husband on the other, and the preferences of the children.

Defendant had purchased a lot and erected a house at 5412 East Twenty-seventh Street in Kansas City two or three years prior to the alleged commission of the crime. During the winter of 1923-1924, his housekeeper was Mrs. Rose Crawford, a widow with two small children. Mrs. Crawford and her children occupied a bed-room at the northwest corner of the first floor of the house, and defendant slept in the southwest bed-room on the same floor. Defendant's two daughters and his son Albert slept upstairs on the sleeping porch. Because of the scarcity of bed covering, defendant had Albert come down stairs and sleep with him about January 1st, in order that the two girls might have his bed covering. It was during the time between January 1st and the middle of March, 1924, that it is claimed the various acts were committed. Albert testified that the act was committed about fifteen times. The act charged in the indictment was alleged to have been committed on or about February 15, 1924.

Albert testified positively, and was not shaken upon cross-examination, that his father, the defendant, compelled him to submit to the act, the indecent details of which need not be recited. This was denied by defendant just as positively. In attempted corroboration of Albert, the youngest child, Viola May, testified that she looked through the keyhole in the door of her father's bed-room and saw the act committed. Much testimony was offered tending to show the impossibility of the bed being seen by one looking through the keyhole, because of the position of the bed in the bed-room. While the implication is strong that the act was committed while defendant and his son were upon the bed, we have carefully read the testimony, in view of the State's contention that there is no direct testimony that the act was committed on the bed, and fail to find any clear or direct testimony to that effect. The defendant offered several witnesses who testified that he bore a good reputation for truth and veracity and general morality. No countervailing evidence upon that subject was offered by the State.

I. The first contention made by defendant is that the evidence was insufficient to support the verdict of guilt. It is apparent from the foregoing statement of facts that the testimony of Albert Gurnee was entirely sufficient to make a case for the jury. Counsel seems to think that no case for the jury was made because, as he contends and as the testimony tends to show, it would have been a physical impossibility for Viola May Gurnee, by looking through the keyhole, to have seen the act committed upon the bed. If her testimony had been all the testimony as to the commission of the act, there might be some basis for this contention. However, we do not understand that it was necessary for the testimony of Albert Gurnee, the unwilling victim, to be corroborated. The testimony shows that he did not willingly yield to defendant and he was therefore not an accomplice and corroboration of his testimony was not required. [State v. Wilkins, 221 Mo. 444, l. c. 450 and cases cited.]

Where the person, upon whom the crime against nature is perpetrated, consents to and willingly participates in the act, such person is an accomplice. This situation has doubtless given rise to the rule announced in the cases holding that there must be corroboration. [Medis and Hill v. State, 27 Tex.App. 194, 11 Am. St. Rep. 192; People v. Deschessere, 69 A.D. 217; Commonwealth v. Snow, 111 Mass. 411; See also note to Kelly v People (192 Ill. 119) found in 85 Am. St. Rep. at page 326 and Kelley's Crim. Law & Prac. (3 Ed.) sec. 936.] But where the victim...