The State v. Hamilton

• Citation: 263 S.W. 127,304 Mo. 19
• Decision Date: 05 June 1924
• Docket Number: 25345
• Parties: THE STATE v. HARRY HAMILTON, Appellant
• Court: United States State Supreme Court of Missouri

263 S.W. 127

304 Mo. 19

THE STATE v. HARRY HAMILTON, Appellant

No. 25345

Supreme Court of Missouri

June 5, 1924

Appeal from St. Louis City Circuit Court; Hon. J. Hugo Grimm, Judge.

Affirmed.

William E. Fish and Roy A. Fish for appellant.

(1) The court should have sustained the motion for a new trial as the verdict was against the weight of evidence. (2) The court erred in giving instruction numbered 4, and especially the latter part of said instruction. State v. Mangrum, 245 S.W. 817.

Jesse W. Barrett, Attorney-General, and Robert W Otto, Assistant Attorney-General, for respondent.

(1) The court did not err in refusing to advise the prosecuting witness of her constitutional privilege. (a) The privilege against self-incrimination afforded by Article 2, section 23 Constitution of Missouri, is purely personal to the witness and the witness cannot claim the privilege of another person. State v. Kennedy, 151 Mo. 268, 285; Hale v. Henkel, 50 Law Ed. (U.S.) 652. (b) One may not raise a question of constitutionality when his personal constitutional rights have not been invaded. Stouffer v. Crawford, 248 S.W. 581, 585; In re Tartar, 278 Mo. 356, 364; State v. Baskowitz, 250 Mo. 82, 89. (2) Proof of penetration may be shown by circumstantial evidence, and the slightest proof of actual penetration is sufficient. State v. Devorss, 221 Mo. 469; State v. Mason, 189 N.W. 452, 453; Hale v. Commonwealth, 244 S.W. 79; State v. McGrath, 193 N.W. 602; Blackmon v. State, 220 S.W. 93; People v. Bernor, 74 N.W. 184; State v. Carnagy, 76 N.W. 805. (3) A conviction for statutory rape may be had upon the uncorroborated testimony of the prosecutrix alone. State v. Wilcox, 111 Mo. 569, 573; State v. Marcks, 140 Mo. 656; State v. Day, 188 Mo. 359; State v. Welch, 191 Mo. 179; State v. Dilts, 191 Mo. 665; State v. Tevis, 234 Mo. 276; State v. Stackhouse, 242 Mo. 444, 449. (4) Where there is sufficient evidence to sustain the verdict this court will not interfere as the weight of the evidence is for the jury. The testimony was sufficient to make a case for the jury and sustain the verdict. State v. Hammontree, 177 S.W. 369; State v. Belknap, 221 S.W. 45; State v. Jenkins, 225 S.W. 989; State v. Hightower, 231 S.W. 566. (5) It was the province of the jury to weigh the testimony and determine what credit should be given to the testimony. State v. Hubbs, 242 S.W. 675; State v. Cason, 252 S.W. 689. (6) That part of State's instruction numbered 4 on the credibility of witnesses is in proper form and has often been approved by this court. Gillette v. Wimer, 23 Mo. 77; State v. Dwyer, 25 Mo. 553; State v. Wright, 134 Mo. 404; State v. Hudspeth, 159 Mo. 178, 201; State v. Swisher, 186 Mo. 1, 7; State v. Speritus, 191 Mo. 24; State v. Bond, 191 Mo. 555, 830; State v. Barnes, 204 S.W. 266.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

On June 2, 1923, the Grand Jury of the City of St. Louis, Missouri, returned in to the circuit court of said city, an indictment, charging appellant Hamilton with statutory rape on Bessie Carter, a female child under the age of sixteen years, in the city of St. Louis aforesaid. The indictment further charges that said defendant did unlawfully and feloniously make an assault on said Bessie Carter, and then and there unlawfully and feloniously did carnally know and abuse her. The defendant was formally arraigned, and entered a plea of not guilty.

The case was tried before a jury on June 26, 1923, and, on the same day, the following verdict was returned:

"We, the jury in the above entitled cause, find the defendant guilty of rape, as charged in the indictment, and assess the punishment at imprisonment in the penitentiary for (10) years."

A motion for a new trial was filed and overruled. Thereafter, allocution was granted defendant, the motion for a new trial overruled, judgment rendered, sentence pronounced in accordance with the terms of the verdict, and an appeal was granted said defendant to this court.

The evidence on behalf of the State tends to show that Bessie Carter, an unmarried female of the age of fifteen years, on October 29, 1922, was living with her mother at Alton, Illinois; that she met the defendant, Harry Hamilton, about September or October, 1922, and continued to meet him thereafter on occasions when she would happen to go down town; that on March 31, 1923, she accompanied the defendant to St. Louis, Missouri, arriving at the latter place about ten o'clock at night; that the defendant took her to the Portola Hotel in said city, on said night, and registered as "Mr. and Mrs. Thocker;" that they were assigned to Room 18 in said hotel; that after arriving at said room, defendant insisted on Bessie Carter going to bed, which she did; that during the night, the prosecutrix awakened, found the defendant undressed and lying beside her in bed; that during the night defendant "did something to her;" that while defendant was on top of her, she felt something in her private parts, but did not know that it was defendant's private parts; that she testified before the grand jury that "defendant woke her, and had intercourse with her;" that on cross-examination, she testified, she did not know "if what she felt in her private parts was the private parts of the defendant or his finger;" that about three-thirty in the morning of April 1st, a police officer knocked at the door of Room 18, where she had stayed and was admitted by the defendant, or by use of a pass key; that defendant gave his correct name to said officer and prosecutrix gave her correct name; that when the police officer entered said room, the defendant was dressed in his underwear, and when asked who the prosecutrix was stated she was his sister. The prosecutrix was further interrogated as to her testimony before the grand jury as follows:

"Q. Were you asked, 'Did he put his private parts in yours? A. Yes, sir'? Do you remember how you answered it? A. Yes, sir.

"The Court: Do you remember now that he did or not? A. Yes, sir.

"Mr. Johnston: Q. Do you remember did you bleed any that night? A. No, sir.

"Q. Did it hurt you? A. Yes, sir.

"Q. Where did you hurt -- in your private parts? A. Yes, sir."

Defendant's evidence is substantially as follows: That Bessie Carter lived with her mother in Alton, Illinois; that the mother had known defendant since December 1, 1922, and that he frequently called at her home; that he (defendant) asked the mother for permission to marry Bessie Carter, the prosecutrix, and the mother consented to the marriage; that defendant and prosecutrix came to St. Louis for the purpose of being married; that defendant took prosecutrix to the Portola Hotel upon arriving at St. Louis about ten o'clock at night; that after their arrival, defendant and prosecutrix went to the City Hall to obtain a marriage license, but found the building closed; that he registered under the assumed name of Thocker for himself and prosecutrix; that they then went upstairs to Room 18, and Bessie Carter went to bed first; that she did not take off any of her clothing except her shoes. Defendant testified that he did not take off any of his clothes, but just laid down on the bed with his clothes on; that he loved the prosecutrix, expected to marry her, and was still willing to marry her; that he did not have intercourse with prosecutrix, nor touch her that night.

The remaining questions presented by the record will be considered in the opinion.

I. Appellant in his brief makes but two assignments of error as follows: "First. The court should have sustained the motion for a new trial, as the verdict was against the weight of evidence."

This court from its earliest history to the present time has held with marked unanimity, that in actions at law brought here by appeal, it will not pass upon the weight of the evidence before the jury, except in so far as to determine in a case of this character, whether the verdict of the jury is supported by substantial evidence. [Burtch v. Ry. Co., 236 S.W. l. c. 340; Barnett v. Hastain, 256 S.W. l. c. 752, and cases cited.] The appellant interposed no demurrer to the evidence at the conclusion of either the State's case, or at the conclusion of the whole case. He does not allege in his assignment of errors that the trial court should have directed a verdict of acquittal. He simply asserts that his motion for a new trial should have been sustained, because it charges that the evidence failed to show the male organ of defendant penetrated the female organ of prosecutrix. Having carefully read the entire record and briefs in the case, we will consider the above assignment as though the question involved therein was properly presented for our consideration.

In considering the testimony relating to the subject of penetration, we should keep in mind the facts as they were presented to the jury. The prosecutrix was the first witness put upon the stand by the State and, after testifying that her name was Bessie Carter and that she lived at Alton, Illinois, here is what her counsel, also representing the defendant herein, said to the court and jury:

"Mr Fish: If the court pleases, we want to make a short statement. The mother of this girl and the father of this girl have retained me as her attorney, to defend her in the Juvenile Court, and also in the United States Court, where a charge on the Mann Act is pending against the prosecuting witness and the defendant, and as her attorney, I want to now advise her of her constitutional rights; that is, that she doesn't have to testify here in this case unless she wants to; that she claims her constitutional rights, on the ground that anything she said here might incriminate her in some other court; and that she does not have to testify at this time unless she...