The State v. Pfeiffer
| Decision Date | 04 March 1919 |
| Citation | 209 S.W. 925,277 Mo. 202 |
| Parties | THE STATE v. CHARLIE PFEIFFER, Alias CHARLES N. PETERS, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Leo S. Rassieur Judge.
Affirmed.
Courad Paeben and Chester H. Krum for appellant.
(1) Evidence of previous assaults to which the accused was not a party was erroneously admitted. The evidence seems to have been admitted on an assumed continuity of performance which the facts did not justify. (a) The town-meeting nature of the antecedent assaults, whose consequence was visited upon the appellant by the admission, was in itself sufficient for the exclusion of the evidence. In other words, evidence should not be admitted which a court could not advise a jury to accept because of its incredibility. (b) The appellant having been charged with a completed offense, in which he, at least was alleged to have participated, there was no room for the admission of evidence of transactions to which he was not a party and which occurred in his absence and without his knowledge. (2) A more prejudicial error could not have been committed than the admission of this evidence. State v Hyde, 234 Mo. 200; State v. Horton, 247 Mo. 666; State v. Teeter, 239 Mo. 485. (3) It was reversible error to exclude the evidence of Doctor A. C. Vickery, and as a corollary to the question involved in this testimony it was reversible error to refuse the instructions asked by appellant on the point that the prosecutrix might have been an accomplice. The questions and the instruction were asked upon the obvious theory that if the woman assented to the act she was an accomplice in the commission of the crime. The offense is one which presupposes participation by at least two persons.
Frank W. McAllister, Attorney-General, and Henry B. Hunt, Assistant Attorney-General, for respondent.
(1) Evidence as to the assaults committed in Benton Park and at Cherokee Brewery by Long, Gaussman and Katz was properly admitted, (a) as the crime committed by appellant was one part of this continuous transaction. This evidence was also admissible upon the theory (b) that appellant joined the parties above named before the conspiracy was ended, and by so doing, he adopted their acts and declarations. State v. Katz, 266 Mo. 503; State v. Pfeifer, 267 Mo. 28; United States v. Logan, 45 F. 889; State v. Crab, 121 Mo. 563; Com. v. Rogers, 181 Mass. 193; Owens v. State, 16 Lea (Tenn.), 5; Stevens v. State, 42 Tex. Crim. 172; Baker v. State, 81 Wis. 420; Blain v. State, 33 Tex. Crim. 250; State v. Fields, 234 Mo. 615; State v. Gatlin, 170 Mo. 354; State v. Melrose, 98 Mo. 590; State v. McGraw, 87 Mo. 161; State v. Duncan, 64 Mo. 262; State v. Minton, 116 Mo. 605; State v. Swain, 68 Mo. 605; State v. May, 142 Mo. 135; State v. Faulkner, 175 Mo. 546; State v. Walker, 98 Mo. 95; Hart v. Hicks, 129 Mo. 105. (2) The evidence of Dr. A. C. Vickery, was properly excluded, and the instruction offered by appellant, as to the prosecutrix being an accomplice, was properly refused by the court. State v. Katz, 266 Mo. 504; State v. Campbell, 210 Mo. 229; State v. Smith, 250 Mo. 372; State v. Jenkins, 178 S.W. 93. (a) Consent is no defense to the crime charged. 36 Cyc. 504; 25 Am. & Eng. Ency. Law (2 Ed.), 1146; State v. Katz, 266 Mo. 503. (b) Hypothetical question must be based on evidence. Rogers, Expert Testimony (2 Ed.), p. 66 and sec. 13, p. 33; Russ v. Railway, 112 Mo. 48; Root v. Railway, 195 Mo. 377; Meily v. Railway, 215 Mo. 593; State v. Brown, 181 Mo. 215.
Defendant was convicted of sodomy perpetrated, as it is averred, upon one Mary Emmenegger, and his punishment fixed by the jury at imprisonment in the penitentiary for a term of three years. This is the second appeal in this case (See State v. Pfeifer, 267 Mo. 23, 183 S.W. 337), and the third time the bestial facts in evidence have been before us. (See State v. Katz, 266 Mo. 493, 181 S.W. 425). No occasion therefore is seen to again recite the facts shown upon the trial, since so much of the facts as we omit here, but which are necessary to an understanding of all the points raised, will be found set forth in the case of State v. Katz, supra, and State v. Pfeifer, supra, wherein the student of the law or the pruriently curious may read them at length and ad nauseam.
I. It is first insisted that the information upon which defendant was convicted is fatally defective. We have already passed upon this identical objection in the case of State v. Katz, supra, wherein an information similar in all substantial respects was held sufficient. There is, however, in the case at bar a patent typographical error whereby the word "thrusting" is spelled "threusing" in the information, but even if the use of this word were absolutely necessary to the sufficiency of the information instead of being surplusage (State v. Meyers, 99 Mo. 107, 12 S.W. 516) we would hesitate to stultify ourselves by holding that so obvious a clerical misprision would vitiate this information. [State v. Miller, 156 Mo. 76, 56 S.W. 907; State v. Estis, 70 Mo. 427; State v. Massey, 274 Mo. 578, 204 S.W. 541.] We disallow this contention.
II. Defendant's learned counsel also contend with much vigor that the trial court erred in permitting the State to show acts of rape and sodomy which were perpetrated on prosecutrix by Katz and two others before defendant is alleged to have appeared upon the scene, or committed the offense of which he was convicted. Counsel argue with much force and ability that under no possible theory could there have been a criminal conspiracy (in which defendant had part) to do the acts proven to have been done by Katz and his associates in crime. In other words, while grudgingly conceding the rule that once a conspiracy to do a criminal act is shown each co-conspirator becomes liable to have proved against him upon his trial every act and admission done or made by any other coconspirator which are res gestae, that is to say, which are done or said while the common enterprise is proceeding, counsel yet insist that rape and sodomy are in their nature such crimes as preclude any possible application of this general rule to them. So, it is urged there was error here in admitting against the defendant, evidence of the prior rapes and sodomies, language and acts of Katz and his criminal associates. The question is a close and difficult one, but after a laborious and careful examination of the ruled cases and the textbooks, we are constrained to overrule it.
Let us briefly look at the facts: Katz and his associates took the prosecutrix from the young man in whose company she was at about eleven o'clock at night. In order to secure possession of her person they told her that they were detectives and that they were arresting her for some undisclosed offense. Thereafter they kept her in their custody continuously, each in turn committing acts of rape and sodomy upon her person ad libitum, till 3:30 o'clock in the morning, at which time the defendant came up to where the three were holding her in custody. The first words defendant said to prosecutrix, and so far as the record shows, the first words spoken by defendant to any one of this degraded gang were, "Well, girlie the same thing has to be done what was done to you before, what the other fellows done, I am head of these detectives, I am boss over them all." Immediately thereupon, continues the prosecutrix, "he threw me down and Katz and Gaussman and Long and him carried me back of the old Cherokee Brewery," where and whereupon the defendant committed the act for which he is here being prosecuted.
The admissibility of evidence of the prior crimes of Katz and his associates does not depend, as learned counsel for defendant somewhat flippantly argue, upon ratification, but upon the theory fairly to be deduced by the jury from the language of defendant himself, that there was a conspiracy between the defendant, and Katz and his miserable gang to get possession of prosecutrix and hold her till defendant could appear and likewise have his will of her. Under the testimony of prosecutrix as to the initial statements of defendant, which seemingly corroborated the lie by which Katz and his gang got possession of her person, the latter were aiders and abettors and therefore accomplices of defendant in the sodomy he perpetrated on her. The jury had the right to consider and to find, if they saw fit, whether the language of defendant did not fairly mean that in arresting prosecutrix and retaining her in custody till defendant came, they were acting under his orders. If they were, defendant was as to the acts of Katz and his associates, an accomplice and a co-conspirator with them, and whatever was done or said by them after the caption of prosecutrix and pending her detention could be shown against defendant upon his trial.
The situation presented is we think wholly different from that which is so ably urged upon us by the insistence of defendant's counsel. If A and B mutually conspire to rob all of the houses in a given block, A taking one-half and B the other moiety, and they proceed singly and alone thereafter, there is not lacking authority that B's acts in robbing a given house may not be shown against A when the latter is on trial for another but wholly different robbery in the category. Or, if F be on trial for perjury, for that he had falsely etc., sworn that he did not know of the existence or purpose of a certain fund held in escrow for the purpose of a specific bribery, other acts of an alleged combine, or of co-conspirators, tending to prove separate and distinct briberies by other persons for other purposes cannot be shown against him. [...
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