The State v. Seay
| Decision Date | 04 June 1920 |
| Parties | THE STATE v. DAVID M. SEAY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Criminal Court. -- Hon. Ralph S. Latshaw, Judge.
Reversed and remanded.
J. M Johnson and Henry L. Warren for appellant.
(1) The court erred in not sustaining the defendant's demurrer offered at the close of the State's case. State v Tevis, 234 Mo. 276; State v. Goodale, 210 Mo 275; State v. Hughes, 167 S.W. 527. (2) The court erred in not sustaining the defendant's motion filed at the opening of the case, to require the State to elect on which act it would stand. State v. Palmberg, 199 Mo. 233. (3) The court erred in admitting testimony of the subsequent acts of intercourse. State v. Palmberg, 199 Mo. 233. (4) The court erred in permitting questions to be asked and testimony given which assumed defendant had raped many other young girls. State v. Davis, 190 S.W. 298; State v. Wilson, 117 Mo. 570.
Frank W. McAllister, Attorney-General, and J. W. Broaddus, Assistant Attorney-General, for respondent.
(1) The court did not err in refusing to sustain defendant's demurrer at the close of the State's case and at the close of all the evidence. (a) Defendant having offered testimony in his own behalf waived his demurrer at the close of the State's case. State v. Mann, 217 S.W. 69. (b) Where there is any substantial evidence to sustain 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. Reed, 237 Mo. 231; State v. Conley, 217 S.W. 29. (c) There was substantial evidence tending to show defendant's guilt. State v. Manual, 263 Mo. 670; State v. Swain, 239 Mo. 723. (2) The court did not err in refusing to sustain defendant's motion offered at the close of the opening statement to require the State to elect on what act it would stand, as the time of election rests largely in the discretion of the trial court. State v. Hughes, 258 Mo. 270; State v. McKinney, 254 Mo. 698; State v. Miller, 263 Mo. 334; State v. Hurley, 242 Mo. 459; State v. Pruitt, 202 Mo. 51. (3) As it was within the trial court's discretion to refuse to compel the State to elect on which act it would stand until the close of its case, the admission of the act as testified to by the witness, Virginia Turner, before said election was not error. State v. Hurley, 242 Mo. 459. (4) It is proper for the State to ask defendant's character witnesses on cross-examination if they had not heard of defendant committing similar assaults upon other girls. State v. Smith, 250 Mo. 277; State v. Hutchinson, 186 S.W. 1001; State v. Beckner, 194 Mo. 298; State v. Wertz, 191 Mo. 579; State v. Parker, 172 Mo. 206; Underhill on Criminal Evidence, sec. 82.
WHITE, C. Railey and Mozley, CC., concur.
The defendant appeals from a conviction in the Circuit Court of Jackson County, on a charge of statutory rape, committed upon one Lucy Hare, a female child under the age of fifteen years.
Seay was fifty-nine years of age, a bachelor, and conducted a card-printing shop at No. 1120 Troost Avenue, Kansas City. The shop was on the ground floor and contained two rooms -- one in front where he transacted business, and one in the rear where he slept, and where, the State's evidence went to show, he maintained a cot on which the alleged offense was committed.
Lucy Hare was thirteen years of age and attended the Humboldt School. She, with other girls who attended that school, were frequenters of the defendant's shop. She was in the shop a number of times during a period extending from June, 1918, until December of that year. It was on one of these visits in June that the first criminal act was committed by the defendant against Lucy Hare. This recurred at intervals when she would visit the shop in company with another girl, named Virginia Turner. The last act of the kind described occurred about a week before Christmas in December, 1918. The incident is described by the prosecuting witness and by Virginia Turner who was present all the time.
The defendants endeavored to show that the arrangement of the shop was such that he could not have committed the offense in the manner detailed, by describing the interior of the back room of his shop. This evidence, however, was contradicted by the testimony of the State's witnesses who described the place as containing two bunks, one about seven feet above the floor, where he slept, and the other lower down, composed of boxes over which a quilt or something was spread.
I. The attorney for the defendant demurred to the evidence at the close of the State's evidence, and again at the close of all the evidence. It is claimed that the court erred in overruling these demurrers. In regard to the facts relating to the particular offense for which the State seeks a conviction the evidence of the prosecuting witness and of Virginia Turner was quite clear and entirely sufficient to submit the issue to the jury. The defendant, on cross-examination of the prosecuting witness, had her state that she suffered no pain at the time. This was offset by the testimony of a physician, who examined the girl on the order of the court, and testified that she was a well developed girl for her age of thirteen years and that the hymen was broken at a much earlier period, not recently. The court properly overruled the demurrer to the evidence.
II. The prosecuting attorney, in his opening statement, related substantially what the evidence would be in relation to the different criminal acts committed by the defendant upon the prosecuting witness and the defendant's counsel then asked the court to have the State elect upon which particular offense the State would expect a conviction, since each distinct act was a separate crime. The court overruled the motion, but at the close of the State's case did require the State to elect. The prosecutor thereupon elected to demand a conviction for the offense committed about a week before Christmas in December, 1918. The rule in regard to requiring an election in such case is largely within the discretion of the trial court. It should be made as soon as the facts are sufficiently developed to warrant it. [State v. Hughes, 258 Mo. 264, 270, 167 S.W. 529; State v. Hurley, 242 Mo. 452, 459, 146 S.W. 1154; State v. Miller, 263 Mo. 326, 334, 172 S.W. 385.] The election in this case was made within the proper time.
III. The defendant denied specifically and generally all the criminal acts charged against him and introduced a number of witnesses, who from the evidence appeared to be reputable citizens, to testify that he had a good reputation. It appears from intimations in the record that some time in February, 1919, the defendant was apprehended, and was then suspected of committing sundry crimes of the character charged against him in this case, against numerous girls, including the prosecuting witness. When the defendant's character witnesses were on the stand testifying to his good character the prosecuting attorney proceeded to cross-examine them in this manner:
Objection to this question was overruled and exception saved.
The prosecutor then asked this question:
Objection to this was overruled and the witness answered:
A number of questions of that character were asked of several witnesses and answered over the objection and exception of the defendant, and of one witness the prosecutor asked this question:
Objection to which was overruled and exception saved.
When a defendant on trial charged with a crime introduces a witness to prove good character it is proper for the State to cross-examine such character witnesses for the purpose of testing their knowledge of the defendant's reputation the sources of their information, and their credibility. Such cross-examination is largely within the discretion of the trial court. [State v. Phillips, 233 Mo. 299, 305, 135 S.W. 4; State v. Harris, 209 Mo. 423, 443, 108 S.W. 28.] It is permissible to inquire of the character witnesses whether they have heard such and...
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