The State v. Henggeler
| Citation | 278 S.W. 743,312 Mo. 15 |
| Decision Date | 22 December 1925 |
| Docket Number | 26484 |
| Parties | THE STATE v. JOHN HENGGELER, Appellant |
| Court | United States State Supreme Court of Missouri |
Appeal from Nodaway Circuit Court; Hon. John M. Dawson Judge.
Affirmed.
Robert W. Otto, Attorney-General, and James A. Potter Special Assistant Attorney-General, for respondent.
(1) The court did not permit the State to prove any assaults other than the assault of the defendant, but on the contrary excluded all of such evidence both with and without the objection of the defendant. (2) The court committed no error in permitting the witnesses to testify as to the condition of the body of the prosecuting witness. The State's evidence and the admission of the defendant showed that the defendant was partially responsible for the condition of the prosecuting witness. (3) The court properly limited the testimony of the witness From regarding cries and screams of a child to such screams as were made after the defendant returned home on the night of the crime. (4) The court did not err in refusing to discharge the jury at the close of the opening statement of the prosecuting attorney. Had it not been for the opening statement of the prosecuting attorney, the defendant would have been held responsible in the eyes of the jury for all the assaults made on the prosecuting witness. In other words, had not the jury been told that others assaulted the witness on the night in question the jury would have held the defendant solely responsible for the subsequent condition of the prosecuting witness's body. The statement of the prosecuting attorney was favorable to the defendant and not prejudicial. (5) There was no variance in the charge contained in the information and in the proof adduced. Laws 1921, p. 281; State v. Evans, 270 S.W. 684. (6) The court did not err in refusing a peremptory instruction at the close of the case. The defendant admitted to two or three witnesses that he did assault the prosecuting witness on the night in question, with a leather strap one and one-half inches wide and two feet long, which was shown to be a part of a set of harness. The prosecuting witness testified that the defendant did assault her on the night in question and struck her several times. The defendant, on the other hand, instead of attempting to show some provocation for his assault denied the assault entirely. The case was clearly one for the jury. State v. Koonse, 123 Mo.App. 655; State v. Evans, 270 S.W. 684. (7) The defendant procured a severance before the trial and he is, therefore, in no position to complain of the error, if any, in charging two defendants who had committed different assaults in the same count of the information. (8) Instruction 1 given on the part of the State fully and fairly covered the law of the case. State v. Evans, 270 S.W. 684.
The information charges that on August 18, 1923, at the County of Nodaway, the appellant and Chloe Henggeler had the care and custody of Mary Alice Whited, an infant child under the age of sixteen years, and did then and there unlawfully and feloniously and purposely assault, beat, wound and injure her, whereby her life was endangered and her person and health were injured and her health was likely to be injured.
The defendant was granted a severance, tried on January 24, 1924, found guilty by the verdict of the jury, and his punishment assessed at a fine of $ 625. After motions for new trial and in arrest were overruled, judgment was rendered accordingly, and an appeal was granted to this court.
The evidence for the State is that, in the year 1921, Mary Alice Whited, a neglected child, became an inmate of the Buchanan County Detention Home for neglected and delinquent children; that in the spring of 1923, at the solicitation of the appellant, the superintendent of the Home committed her to the defendant's care, and that he took her to his home, sixteen miles southeast of Maryville in said county; that she continued to live with appellant; that on Saturday, August 18, 1923, appellant and his wife drove to Maryville in his Ford truck, taking Mary and others with them, and returned home after dark; that some time after reaching his home appellant brutally beat the girl with a strap about an inch and a half wide and two feet long; that she stayed that night in appellant's cornfield; that appellant's wife the following morning found her at a neighbor's house and took her home; that Gabe Purcell, a deputy sheriff, acting upon information, went to defendant's home and took the girl to Dr. Farrell's office. She had from twenty to twenty-five stripes, from an inch to an inch and a half wide, on her body down to her waist line, and little sores that had scabbed over; there were also wounds and bruises, covered with powder. Some of the stripes extended around her body to and over her stomach. The appellant was present at this examination and, in reply to a question by Mr. Purcell, the latter testified: Purcell testified that appellant indicated the strap was an inch or an inch and a half wide and about two feet long.
Dr. Frank Wallis, during the week following August 18, stripped the child to her waist line. She had a boil on one arm and a number of black and blue stripes over her entire back and on her sides and the front of her body; the skin was broken in a few places. The doctor did not think infection was likely to result.
Mary Alice Whited testified that she was twelve years of age at the time of the trial; that she had lived three or four years in the Detention Home and was taken by the defendant and lived with him about two months; that on a Saturday in August she went with defendant and his wife to Maryville, returning that evening after dark; she milked the cow; that Chloe Henggeler, defendant's wife, struck her. (Here the court, on objection by the defendant, directed the prosecuting attorney to limit the testimony to any assault the defendant made). Witness, continuing, said the defendant struck her, how many times she did not know; that he said he was whipping her because she ran away from his wife; that he struck her on the back with a strap a few times; that she went to the cornfield and the next day went to Weatherman's; that Chloe Henggeler and May Davis came and got her. The next day Mr. Purcell got her and took her to Maryville.
On cross-examination, witness testified that she didn't know the year of her birth; had never seen a record of her birth; her mother never told her; a little girl at the Detention Home told her she was born March 4, 1911; that she went to the Home in the winter time, but did not know what year; that she was staying there at the time of the trial; that not very long after they returned from Maryville the defendant whipped her with a strap, how many times she did not know; two or three times, not any more. She further testified that they or the sore on her elbow were not caused by the whipping defendant gave her.
Charles From testified he lived at Conception; that he first saw Mary Whited on Tuesday, the day she was brought to Maryville; that defendant lived one mile south and three-quarters of a mile east of Conception Junction; that on Saturday night he was near defendant's house; his car stalled there on a hill about 9:15, about half a quarter east of Henggeler's home; his car was stalled there about an hour; he heard a child screaming over in the direction of defendant's house; about fifteen minutes after the child screamed a car drove into defendant's place from the direction of Conception Junction; about ten or fifteen minutes later he again heard a child screaming from the same direction. (On objection by the defendant, the court ruled that the screaming before the time the automobile drove in would be excluded and directed the jury to disregard it). On cross-examination witness said he remained at the hill about fifteen minutes after the car drove into defendant's premises, which he judged was about ten minutes before ten P. M.
The defendant testified that he was a farmer, twenty-nine years old, married in 1920; that he and his wife secured the child Mary at the Detention Home at St. Joseph, Mo., in the spring; that she remained with them until August 18th; they returned home from Maryville after dark; they got supper and ate it, and that he then took two young ladies in his Ford truck to a picture show at Conception Junction, and that it was eleven or eleven thirty when they returned home; that he did not strike or whip Mary Whited; that he did not tell Purcell in Dr. Farrell's office in Conception Junction that he had whipped her, or that in substance, or that he participated in the whipping; that he had no talk with Purcell. On cross-examination, witness said he was in Dr. Farrell's office not over fifteen or twenty minutes while Dr. Farrell and Purcell had the child's clothes down, examining her. After they came out of the office Purcell said to the witness: "You can go home; I am going to take the girl to Maryville." Witness said after he returned from the picture show he saw the child close to midnight at the corner of the cornfield.
The defendant was corroborated as to his being at the picture show and the time he returned. Six witnesses testified that the general reputation of the defendant as a peaceable, orderly and law abiding citizen was good.
Instructions 1 and 2, given for the State, read:
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