The State v. Harris

• Decision Date: 10 June 1920
• Citation: 222 S.W. 420,283 Mo. 99
• Parties: THE STATE v. WILLIAM HARRIS, Appellant
• Court: Missouri Supreme Court

222 S.W. 420

283 Mo. 99

THE STATE v. WILLIAM HARRIS, Appellant

Supreme Court of Missouri, Second Division

June 10, 1920

Appeal from Greene Criminal Court. -- Hon. Arch A. Johnson, Judge.

Reversed and remanded.

Val Mason and John H. Fairman for appellant.

(1) The State wholly failed to prove the age of the prosecuting witness, Lucy Harris. State v. Houx, 109 Mo. 645; State v. Gully, 199 S.W. 124; State v Ackley, 183 S.W. 289. This testimony was wholly incompetent because hearsay and it was not shown either (a) that declarant (the grandmother) was dead or that her testimony was otherwise unobtainable upon trial; (b) that declarant was even a member of the family; or (c) that the declarations were made ante litem mortam. State v Bowman, 213 S.W. 64. (2) The court erred in admitting over the objection and exception of the defendant, the testimony of Etta Harris, who was the legal wife of the defendant. Cargile v. Wood, 63 Mo. 512; Imboden v. St. Louis Union Trust Co., 111 Mo.App. 220; Plattner v. Plattner, 116 Mo.App. 405; Davis v. Stouffer, 132 Mo.App. 555; State v. Evans, 138 Mo. 116. (3) The court erred in admitting incompetent testimony concerning other alleged crimes occurring subsequent to the one for which the defendant was charged and on trial. State v. Palmberg, 199 Mo. 233; People v. Clark, 33 Mich. 112. We have not found any law which would permit testimony of this kind for any purpose. Clearly it could not be used to prove the intent with which the defendant acted on the occasion which the defendant is charged and on trial in this case, as instructed by the court. Its only result would be to prejudice and inflame the jury against this defendant. (4) The court erred in giving the instruction telling the jury that other acts could be considered for the purpose of showing intent. This instruction is erroneous, because: (a) intent is not an element in the crime of rape where the act has been consummated; (b) evidence of prior acts is admissible only where they occur recently and before the act charged. State v. Scott, 172 Mo. 563. And then only where they tend to prove the particular act upon which the conviction is sought. State v. Palmberg, 199 Mo. 233; (c) intent cannot be shown by subsequent acts, nor would subsequent acts tend to prove an act previous thereto. State v. Palmberg, above; (d) evidence that the defendant had intercourse with Ruth Hunter, either prior or subsequent to the act charged in the information, would not tend to prove the act charged in the information, and its admission is reversible error. State v. Smith, 250 Mo. 274.

Frank W. McAllister, Attorney-General, and H. P. Ragland and J. W. Broaddus, Assistant Attorneys-General, for respondent.

(1) The information charging rape and incest, and that defendant had previously been convicted of breaking jail, is sufficient in form and substance to meet the requirements of the statutes. Sec. 4471, R. S. 1909; Laws 1913, p. 218; Sec. 4725, R. S. 1909; Kelley's Crim. Law & Pract. sec. 935; Sec. 4381, R. S. 1909; State v. Oertel, 217 S.W. 66. (2) The verdict of the jury is based upon substantial evidence. (a) The first and second assignments in appellant's motion for a new trial are too indefinite. State v. Mann, 217 S.W. 69. (b) Where there is any substantial evidence upon which to base the verdict this court will not interfere as the weight of the evidence is for the jury. State v. Underwood, 263 Mo. 685; State v. Concelia, 250 Mo. 412; State v. Conley, 217 S.W. 30; State v. Reed, 237 Mo. 231. (3) It was not error to permit Etta Wheaton to testify, over the objections of appellant. Unlawful cohabitation as husband and wife is not within the prohibition of husband and wife testifying against each other. The appellant admitted upon direct examination that the reason he had been living with Etta Wheaton for seven or eight years was because he intended to marry her. 1 Greenleaf on Evidence (16 Ed.), sec. 339, p. 498; Bishop's New Crim. Procedure (2 Ed.), sec. 1154, p. 983; Rickerstricker v. State, 31 Ark. 209; State v. Johnson, 9 La. Ann. 308; State v. Brown, 28 La. Ann. 280. (4) The assignment that the court erred in permitting the testimony of Etta Harris, Lucy Harris and Josephine Harris as to other alleged acts of intercourse is not saved for review. It is true the State did introduce testimony tending to show that defendant had illicit relations with his other daughters, Josephine and Ruth. However, defendant cannot complain on this score as he did not object to the introduction of this testimony and proceeded to cross-examine the witnesses at length. State v. Levy, 262 Mo. 191.

RAILEY, C. White, C., concurs, except as to paragraphs 4, 5, and 6; Mozley, C., concurs. Walker and Williamson, JJ., concur; Williams, P. J., concurs in paragraphs 1, 2, 3 and 7, but dissents as to the views expressed in paragraphs 4, 5 and 6.

OPINION

RAILEY, C. --

On December 11, 1918, the Prosecuting Attorney of Greene County, Missouri, filed, in the office of the clerk of the criminal court of said county, an information in two counts, charging defendant, William Harris, with the crimes of statutory rape, and incest. On December 13, 1918, appellant filed a demurrer to said information, which was overruled. On December 14, 1918, defendant was arraigned and entered a plea of not guilty as charged in the information. On December 14, 1918, the case was tried before a jury of Greene County aforesaid, and a verdict was returned in words and figures following, to-wit:

"We, the jury, find the defendant, William Harris guilty of rape as charged in the first count of the information and assess his punishment at imprisonment in the penitentiary for a term of ninety-nine years."

On December 17, 1918, defendant filed his motion for new trial and in arrest of judgment, which were respectively overruled on December 19, 1918. On said last named date, sentence was duly pronounced in accordance with the terms of the verdict aforesaid.

The State's evidence tends to show that the defendant in this case, William Harris, was forty-two years of age, and the father of three daughters, Ruth, Lucy and Josephine. The mother of these girls was deceased, and defendant had, for about seven or eight years, been living with one Etta Wheaton, who, under the name of Etta Harris, held herself out as his wife. She testified that she was everywhere introduced as such, and was referred to as "mother" by the children. On or about August, 1917, the defendant, Etta Wheaton, Lucy and Josephine moved to the farm of Luther Byrum, some three or four miles southeast of Springfield, in Greene County. On this farm, besides the dwelling house, was a large two story barn. In the lower portion was kept, besides the stock, small grain, such as oats and corn. The upper portion, or loft, was used for the storing of hay. It was in this barn that defendant committed the acts, constituting the crime for the commission of which, he was charged and convicted. The daughters of defendant were accustomed to help him with his chores and were frequently with him in the barn. It was during one of these occasions that defendant had sexual intercourse with Lucy and Josephine. The latter testified on the witness stand that she was present at that time, and saw her father have intercourse with Lucy. He had her lie down upon the hay, unbuttoned his trousers, raised her clothes, got on top of her and had connection with her. She testified further that after the act with Lucy, he then called to her to come and lie down on the hay, and with her he also had intercourse. Defendant gave Lucy ten cents and Josephine five cents, as the latter said, "for that." Josephine stated she saw defendant have intercourse with Lucy once after that, and, while she did not know how many times her father had had improper relations with Lucy, yet she knew he did so in the barn "quite a few times." Sometimes it would be upstairs and sometimes down. Josephine, according to her testimony, was thirteen years of age.

Etta Wheaton testified that she had been living with the defendant about seven years, during all of which time she held herself out to the public as his wife, and had lived with him until very recently, until the girls came and told her stories, against their father. That she last lived with defendant, in Plattsburg, Missouri and while they were residing there she saw defendant early one morning get into the bed with Lucy. They were both in their night clothes. She afterwards accused defendant of having had intercourse with his daughter, and shortly after that time he left Plattsburg. In July, she heard that her husband had married another woman, Alice Weaver. She then wrote to Miss Hull, the police matron of Springfield, stating in her letter that defendant had been having sexual intercourse with Lucy. She further testified that, after the marriage of defendant, she sent Lucy, who was then living with her, to Springfield to her father for him to take care of. That she also discovered her husband in the act of intercourse with another daughter, Ruth, in Patton Alley in the City of Springfield.

When Lucy was called to the stand she stated that she was born in Monteer, Shannon County, Missouri, and lived there until she was of the age of nine years. While living in Monteer, her father had intercourse with her. From Monteer, they moved to Springfield, and then to the Byrum farm in that vicinity. Here again, she states, he had intercourse with her -- how many times she does not know. Her story bears out that of Josephine in nearly every particular as to the acts of intercourse committed in the barn. Lucy testified that she was fourteen years of age.

On behalf of the defendant the evidence tended to show that he had been living with Etta...