The State v. Johnson

Decision Date20 December 1926
Docket Number27437
Citation289 S.W. 847,316 Mo. 86
PartiesThe State v. Robert Johnson, Appellant
CourtMissouri Supreme Court

Appeal from St. Louis County Circuit Court; Hon. G. A Wurdeman, Judge.

Affirmed.

Julian C. Hoester, Jr. and George F. Heege for appellant.

(1) The alleged confession was erroneously admitted in evidence, for if the written confession was void because of duress or fear then the verbal confession was void. State v. Hart, 237 S.W. 437; State v. Moore, 160 Mo. 443; State v. Ellis, 242 S.W. 952; Hector v. State, 2 Mo 166. (2) The court erred in admitting testimony on behalf of the State elicited from defendant's character witnesses as to specific instances of defendant's reputation and the commission of specific offenses not charged in the information. State v. Hulbert, 228 S.W. 499; State v. Seay, 222 S.W. 429. (3) It was abusive discretion on the part of the court not to permit the defendant to file affidavits in support of his motion for a new trial, charging misconduct on the part of certain members of the jury who tried the case. (4) Instruction 1 was erroneous and should not have been given, because it does not properly define the offense as charged in the information, and because it does not require the jury to find that the offense, in order to have been committed, must have been done with criminal intent. State v. Gilreath, 267 S.W. 880. (5) The court erred in refusing to give the defendant's Instruction 1, as this instruction tended to negative the State's principal instruction and required the jury to find that the defendant struck the prosecuting witness and assaulted her with the intention of committing the offense charged. If the assault was committed with the intent to rob, then the defendant was not guilty. State v. Gilreath, 267 S.W. 880; State v. Cantrell, 234 S.W. 800; State v. Majors, 237 S.W. 486. (6) The verdict of death as assessed by the jury is a cruel and unusual punishment within the purview of the Constitution of Missouri and of the United States. It could be reduced by this court if the defendant is guilty and the case is otherwise free of error. State v. Allen, 174 Mo. 689. (7) The court erred in failing to instruct the jury on the offense of robbery, as the defendant testified the assault was committed with the intent to rob, and not to ravish. Sec. 4025, R. S. 1919; State v. Fredericks, 136 Mo. 51; State v. Anderson, 86 Mo. 309; State v. Parlow, 90 Mo. 608; State v. Hoag, 232 Mo. 308; State v. Banks, 73 Mo. 592;

North T. Gentry, Attorney-General, and James A. Potter, Assistant Attorney-General, for respondent.

(1) The testimony of the prosecuting witness was direct, positive, consistent and uncontradicted by any physical fact. Where there is any substantial testimony offered on the part of the State the case must be submitted to the jury. State v. Warner, 74 Mo. 83; State v. Pollard, 174 Mo. 607; State v. Hughes, 258 Mo. 272; State v. Belknap, 221 S.W. 45; State v. Loness, 238 S.W. 113; State v. Jackson, 283 Mo. 24; State v. Hascall, 284 Mo. 616; State v. Cox, 263 S.W. 215; State v. Bowman, 278 Mo. 499; State v. Stackhouse, 242 Mo. 444. (2) The instructions given by the court and numbered one to six were in proper form and fully covered every necessary issue in the case. State v. Hutchens, 271 S.W. 525; State v. Mardino, 268 S.W. 48; State v. Davis, 268 S.W. 44; State v. Hayes, 262 S.W. 1034; State v. Hamilton, 263 S.W. 127; State v. Perry, 267 S.W. 828; State v. Woodard, 273 S.W. 1047. (3) The instruction offered by defendant was properly refused. The first part of the instruction requested by defendant was clearly erroneous. The intent to rape might have been formed at the time the assault with the iron pin was committed; or it might have been formed after the assault with the iron pin. The issue in the case was whether the defendant ravished the prosecuting witness and not when the intent to ravish was formed. Sec. 3247, R. S. 1919.

Higbee C. Railey, C., not sitting.

OPINION
HIGBEE

The defendant was found guilty in the Circuit Court of St. Louis County of the crime of rape and his punishment assessed at death, from which he has appealed.

The evidence for the State shows that Frank Faenger and his wife, Mabel Faenger, and their six-year-old daughter, lived in a small house near the village of Afton in St. Louis County. This house is in a field and stands back from the public highway. On the morning of Tuesday, March 9, 1926, defendant, a negro aged twenty-six, left his home in St. Louis and went out in the vicinity of Afton. Walking on the track of the Frisco Railroad he picked up a coupling pin. He came to the Faenger house about 10:30 a. m. Mrs. Faenger was alone, her husband being at work in St. Louis and the little girl at school. Johnson knocked at the kitchen door and asked for something to eat. Mrs. Faenger said she would get him something, closed the door and presently returned, opened the door and offered him egg sandwiches and a cup of coffee. Johnson said "I don't want anything to eat; I want you," and struck her several blows on the head with the coupling pin. She fell on the floor; defendant tore off her bloomers, and ravished her, she all the time screaming, fighting and resisting to the limit of her strength. The proof of penetration is clear. Johnson then struck her with his fist on her right eye and went into the bedroom looking for money and jewelry. Mrs. Faenger testified that she was conscious all the time and that she ran from the house screaming into the field. Mr. Horst and his two sons, who were working some 400 or 500 feet away, heard her screams and saw her running and staggering. They ran to her; blood was running from her head; she was weak and nervous and complained of the negro's assault. They took her to Mr. Horst's home. Dr. Wagenbach came and found her bleeding profusely from cuts on the head, which were to the skull, and sent her to the Lutheran Hospital. An X-ray picture showed several fractures of the skull. There was no internal hemorrhage, and the fractures did not render her unconscious at any time. Dr. Wagenbach examined Mrs. Faenger's private parts the next day to see if she had contracted a venereal disease, but because she was a mother no bruises or lacerations of her private parts had resulted from the sexual act.

On the afternoon of March 9th, the day the crime was committed. Andrew McDonald, chief of police of Webster Groves, and several others, went to Faenger's house. They found the coupling pin a few feet from the kitchen door with blood and hair adhering; they found two pools of blood, each about one foot in diameter, on the kitchen floor; they also saw the fragments of a broken coffee cup and an egg on the kitchen floor, and the drawers of a dresser in the bedroom had been pulled out and the contents tumbled about.

Chief McDonald got a description of the defendant and notified policemen in St. Louis and the defendant was arrested on Saturday, March 13th. He was turned over to McDonald and Lenz, another officer. They took him to Webster Groves, arriving there about midnight.

The defendant had a preliminary hearing on March 25th, and on April 5th an information was filed in the Circuit Court of St. Louis County, charging him with having carnally known and ravished Mabel Faenger at said county on March 9, 1926. On the same day the defendant was arraigned and pleaded not guilty. The case went to trial before a jury on April 26th, and on the following day the jury returned a verdict finding the defendant guilty of rape as charged in the information, and assessing his punishment at death. Motion for new trial was filed and overruled, and on May 14th, the court pronounced sentence that the defendant be hanged on June 23, 1926. The court appointed Julian C. Hoester, Jr., and George F. Heege, members of the bar, to conduct the defense. The record shows they did not fail in the discharge of the duties imposed on them by the court. They have filed a typewritten brief and argument and argued the case orally on appeal at our bar. They assign numerous errors, which we will consider so far as may be necessary.

Error is assigned in admitting the defendant's oral confession to officers McDonald and Lenz; that it was induced by fear of mob violence and defendant was promised that, if he confessed, it would go easier with him.

The court, in the absence of the jury, heard Chief McDonald's testimony as to oral statements made by the defendant and a written confession. The court ruled that the oral statements would be admitted, but the written confession would not. On the return of the jury the testimony as to the oral statements was substantially repeated.

Chief McDonald testified in substance: On returning to Webster Groves with Johnson, the defendant, about midnight on March 13th, Officer Lenz and I took him to my office. Before we started interrogating the defendant I said: "Come on Johnson, the sooner we get started, the sooner we will get out of town, the better it will suit me. I don't want anything to happen, I don't want any party; come up and tell me everything you know." A party means a mob. He said he went across the Laclede Station road to a little house setting back in a field on the west side of the road knocked on the door, and a lady came and he asked for work and for something to eat; he waited at the door and she brought two egg sandwiches and a cup of coffee, and when she came to the door he hit her on the head with this pin, and said: It's not something to eat; I want you; that she fell back and he started into the other room looking for jewelry. I said: Did you rape this woman? and he said no. I said, Johnson, I want you to tell me the truth. If you did not rape this woman don't say you did. I said,...

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