The State v. Guye

• Decision Date: 11 June 1923
• Citation: 252 S.W. 955,299 Mo. 348
• Parties: THE STATE v. C. T. GUYE, Appellant
• Court: Missouri Supreme Court

252 S.W. 955

299 Mo. 348

THE STATE v. C. T. GUYE, Appellant

Supreme Court of Missouri, Second Division

June 11, 1923

Appeal from Audrain Circuit Court. -- Hon. Ernest S. Gantt, Judge.

Reversed and remanded.

Hostetter & Haley, R. D. Rogers, J. W. Buffington, G. C. Huston and R L. Sutton for appellant.

(1) The admission of the testimony of Clemison and Dr. Compton is manifestly reversible error; the witnesses were permitted to detail conversations with defendant, the subject-matter of which related to acts of familiarity between defendant and the prosecutrix tending to raise an inference or suspicion of sexual acts between them long subsequent to the time of the offenses charged in the information. State v Palmberg, 199 Mo. 242; State v. Harris, 283 Mo 113; State v. Crowley, 13 Ala. 172; Lovell v. State, 12 Ind. 18; State v. Markins, 95 Ind. 464; People v. Clark, 33 Mich. 112; People v. Fowler, 104 Mich. 449; People v. Freeman, 25 A.D. 283, 50 N.Y.S. 984; People v. Robertson, 84 N.Y.S. 401; State v. Cook, 4 Penn. (Del.) 31; State v. Neel, 23 Utah 541; State v. Acheson, 91 Me. 244; People v. Abbott, 97 Mich. 484; State v. Stevens, 56 Kan. 722. (2) The admission of evidence of lascivious familiarity of the defendant with the prosecutrix, such as caressing and hugging and kissing her and fondling her private parts, long prior to the offenses charged in the information is likewise reversible error. State v. Harris, 283 Mo. 113; State v. Foster, 225 S.W. 672. Evidence of other acts of intercourse, whether prior or subsequent to the time of the offense charged in the information, is excluded by the courts on the ground that such acts do not tend to prove the offense charged and not on the ground merely that such acts are separate and distinct offenses, for it is well established law that when evidence is admissible for any purpose in the specific charge on trial, such evidence will not be excluded merely because it may also prove the commission of another crime. State v. Banks, 258 Mo. 593; State v. Gordon, 253 Mo. 516; State v. Spaugh, 200 Mo. 594; State v. Collins, 181 Mo. 260. (3) The court erred in refusing to require the State to elect upon which of the offenses charged in the information it would go to the jury, at the commencement of the trial, and erred in permitting the State to prove subsequent offenses, after having proved one offense. It is the duty of the prosecuting officer where more than one offense is charged in the information to inform the defense upon what specific offense he intends to rely, at the commencement of the trial, and if he does not do so the first evidence which tends in any degree to prove an offense will be deemed an election so as to exclude evidence of any subsequent offense. Pope v. State, 137 Ala. 56; People v. Williams, 133 Cal. 165; State v. Stevens, 56 Kan. 720; State v. Acheson, 91 Me. 246; State v. Bonsor, 49 Kan. 758; People v. Flaherty, 162 N.Y. 532; State v. Hilberg, 22 Utah 27; State v. Haux, 109 Mo. 654; State v. Carragin, 210 Mo. 371. (4) Permitting the prosecuting witness to testify in answer to the questions propounded by special counsel for the State that the testimony before the grand jury that the defendant had intercourse with her twice in June and July, 1920, was true, is clearly reversible error. This was permitting the witness to testify to sexual acts performed upon her by the defendant which transpired not only subsequent to the acts charged in the information, but also subsequent to her attainment of the age of consent. There was nothing in the cross-examination of the prosecutrix by defendant's counsel which justified the admission of such testimony on re-direct examination by State's counsel. Authorities under Point 1. (5) Procuring the witness Clemison to state that he had a conversation with Harbaum, and procuring the witness to say he afterwards told the defendant that Harbaum told him, the witness, that the prosecutrix was going into the defendant's place of business too often, was a vicious and malignant effort on the part of the counsel to convey to the minds of the jury the impression that Harbaum had actually told the witness what the witness told the defendant and necessarily conveyed that impression to the minds of the jury, and the examination was manifestly designed for that purpose and no other. (6) The court erred in excluding the evidence of other acts of intercourse by the prosecuting witness with four or five boys, after she arrived at the age of consent, as preserved in their depositions. Such evidence was clearly competent as affecting her credibility as a witness. Where a girl over the age of consent has become so morally depraved as to gather up boys off the streets and take them to barns and sheds and hold carnivals of sexual indulgence with them in gangs, the defendant has a right to have such fact shown to the jury as affecting her credibility when she offers herself as a witness against him in a case of this character. Begliben v. State, 151 S.W. (Tex. Crim.) 1044; State v. Biggs, 45 Mont. 404; Herzig v. Sandbury, 172 P. 132; State v. Ferbrade, 206 P. 617. (7) The testimony of the four boys as to their acts of intercourse with the prosecutrix in June and July, 1920, after the prosecutrix was over the age of consent, was competent on the further ground that such acts tended to account for her condition, which she so frequently volunteered to mention in giving her testimony, and which she "laid on" defendant, when he refused to produce the money required by her as the price of not having it "laid on" him. Such evidence was peculiarly material and vital in view of the fact that the prosecutrix was permitted to testify over the objection of defendant's counsel that defendant had intercourse with her in June and July, 1920, leaving the jury to draw the inference that such alleged acts of intercourse with her by defendant were responsible for her "condition," with which "condition" she so cunningly interspersed her testimony. State v. Whitesell, 142 Mo. 470; State v. Apley, 25 N.D. 298; State v. Height, 117 Iowa 650; Shoemaker v. State, 58 Tex. Crim. 518; Bice v. State, 37 Tex. Crim. 38; Knowles v. State, 44 Tex. Crim. 322; Parker v. State, 62 Tex. Crim. 64; People v. Currie, 14 Cal.App. 67; Kanert v. State, 92 Neb. 14; People v. Flaherty, 79 Hun, 48; Nugent v. State, 18 Ala. 521; State v. Hobson, 177 S.W. 377. (8) The court erred in excluding the cross-examination of the prosecuting witness as to her knowledge that the grand jury had failed to indict defendant at the time she made the fresh charges against him for sexual acts said to have occurred in 1919, before she had reached the age of consent, and erred in excluding her evidence that she had such knowledge at the time she made such fresh charges. It is always competent to show a motive for the testimony of a witness. (9) The testimony of the prosecutrix was thoroughly discredited by contradictory statements made by her, both judicial and extra-judicial, as well as by her criminal conduct in avoiding the giving of her testimony before the notary public and her manifest zeal for the conviction of the defendant exhibited at the trial, and her demand upon defendant for the payment of $ 3000 as the price of escaping her accusation, and where the testimony of the prosecutrix is thus discredited the rule in this State requires that her testimony must be corroborated to authorize conviction. State v. Donnington, 246 Mo. 355; State v. Tevis, 234 Mo. 384; State v. Goodale, 210 Mo. 290; State v. Brown, 209 Mo. 413; State v. Hobson, 177 S.W. 376; State v. Hughes, 258 Mo. 272; State v. Seay, 282 Mo. 279. And where the state of the evidence is such as to invoke this rule requiring corroboration, the refusal of the court to instruct the jury that corroboration is necessary to authorize a conviction is universally held to be reversible error. Edwards v. State, 69 Neb. 389; People v. Benson, 6 Cal. 221; People v. Biglizen, 112 A.D. 225; State v. Blackburn, 110 N.W. 275; State v. Carnagy, 106 Iowa 483; McConnell v. State, 77 Neb. 773; People v. Biglizen, 185 N.Y. 616; Barnett v. State, 83 Ala. 40; Monroe v. State, 71 Miss. 196. (10) The evidence is wholly insufficient to support the verdict, and the court ought to have sustained the defendant's demurrer to the evidence. The heinousness of the crime charged and the strong feeling against the person accused of such crime, independent of the question of guilt or innocence, have such an influence against the person on trial that courts in a spirit of caution, born of experience, closely examine and scrutinize the testimony upon which a conviction has been secured, and when the evidence of the prosecutrix is of a contradictory nature, or is discredited by previous contradictory statements of the prosecutrix, or when applied to the admitted facts in the case, her testimony is not convincing, but leaves the mind of the court clouded with doubts, she must be corroborated, or the judgment cannot be sustained. State v. Donnington, 246 Mo. 355; State v. Tevis, 234 Mo. 284; State v. Brown, 209 Mo. 420; State v. Goodale, 210 Mo. 282, 289; State v. Hobson, 177 S.W. 376; State v. Hughes, 258 Mo. 272; State v. Matsinger, 180 S.W. 857; State v. Horton, 247 Mo. 666; State v. Volz, 269 Mo. 205; State v. Manuel, 263 Mo. 675.

Jesse W. Barrett, Attorney-General, and Henry Davis, Assistant Attorney-General, for respondent.

(1) An accused may be charged in an information is separate counts with several charges of rape upon the same female and the State may not be compelled to elect on which count it will proceed to trial. State v. Carragin, 210 Mo. 351 359; State v. Harris, 283 Mo. 99, 112. No exception was saved to the action of the court in overruling the motion to elect and the...