The State v. Swain
| Decision Date | 06 February 1912 |
| Parties | THE STATE v. GENERAL SWAIN, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon George C Hitchcock, Judge.
Affirmed.
Henry M. Walsh for appellant.
(1) The remarks of the State's attorney were calculated to create such a prejudice as to jeopardize the defendant's case. State v. Fairlamb, 121 Mo. 137; Brow v State, 103 Ind. 133; Heller v. People, 22 Colo 11; Ranken v. Commonwealth, 6 Ky. L. Rep. 407; Laubach v. State, 44 Tex. 64; Bryson v. State, 20 Tex.App. 566; Newton v. State, 21 Fla. 53; State v. Upton, 130 Mo.App. 316; State v. Baker, 209 Mo. 444. (2) It was not correct practice to compel the defendant, instead of the prosecution, to call the witnesses. People v. Smith, 99 N.Y.S. 118; Banker v. People, 37 Mich. 4; Weller v. People, 30 Mich. 22; Thomas v. People, 39 Mich. 309; People v. Etten, 81 Mich. 570; People v. Deitz, 86 Mich. 419. (3) There was no corroboration; the best available evidence, that of the physicians who examined the prosecutrix, not being presented. State v. Patrick, 107 M. 168; Matthews v. State, 19 Neb. 330. (4) The court erred in instructing that if the jury believed that at any time before the filing of the information herein, the defendant did unlawfully and feloniously and carnally know Clara Jefferson. This was error.
Elliott W. Major, Attorney-General, and Charles G. Revelle, Assistant Attorney-General, for the State.
(1) Appellant states that the court erred in instructing that, if the jury believe that, at any time before the filing of the information herein, the defendant did unlawfully, feloniously and carnally know Clara Jefferson, etc. This complaint is not sound because there is no limitation on the crime of rape, it being a capital offense punishable by death. Sec. 4944, R. S. 1909. (2) A further contention of appellant is that the State failed to produce witnesses at the trial whom it had subpoenaed. This ground is really aimed at a suppression of evidence by management. The rule has never extended, and the cases cited by appellant do not recite that all of the witnesses to a transaction must necessarily be called by the prosecution. The justice of requiring them all to be called must depend upon circumstances. The decisions in the cases cited in appellant's brief, are to the effect that appellant must save the error by exception, and that the complaint is to the action of the court, and not to the action of the State's attorney, who tried the case. Appellant saved no exception to the action of the court, in this case, in refusing to compel the State to use all of its witnesses subpoenaed, or indorsed upon the back of the information. In fact, no request was made during the trial, nor in appellant's motion for new trial. Therefore, no exception being saved to the action of the court in that behalf, the same is not here for review. (3) Appellant complains in his brief that the prosecutrix was not corroborated. The evidence for the State was corroborated by facts and circumstances, and also by the two witnesses, Alma Hubbard and Louis Gordon, who were in an adjoining room and heard the conversation and noise. Furthermore, the Patrick case cited by appellant, decided by this court in 1891, was overruled in 1897. State v. Marks, 140 Mo. 656. The doctrine announced in the Marks case hase been followed in the cases of State v. Boyd, 178 Mo. 19; State v. Day, 188 Mo. 364; Champagne v. Hamey, 189 Mo. 727; State v. Welch, 191 Mo. 186. This court has uniformly held in a long line of decisions that, where there is substantial evidence to support the verdict, the appellate court should not undertake to retry the case upon the evidence as disclosed by the record. State v. George, 214 Mo. 271. The statements of the prosecutrix are strongly corroborated by the testimony of four witnesses. In fact it is seldom that a record reaches this court, involving a charge of this nature, where there is as much evidence showing the guilt of the accused. The complaint made by appellant is not that there was not sufficient evidence offered to establish against him a case, but is that the State could have called other witnesses and offered additional evidence tending to more strongly show his guilt. Since it is only required that substantial evidence of guilt be offered, and it is only in such cases where there is no such evidence that this court interferes with a verdict, we respectfully ask that the judgment be affirmed.
Defendant was convicted in the circuit court of the city of St. Louis of the crime of rape upon one Clara Jefferson, twelve years old, and sentenced to eleven years in the penitentiary.
The testimony for the State tended to show that the prosecutrix lived with her parents at their home, located within three or four houses of defendant's saloon. On the afternoon of December 1, 1909, she visited at the home of a girl friend until about six o'clock. On her way home, she saw defendant standing in the side door of his saloon, which opened into a hallway and stairs leading to the second story where defendant had rooms and made his residence. He addressed her as she was passing by, asking if she wanted a fairy story book, to which she replied in the affirmative. He then told her to follow him upstairs to his room, which she did. Both having entered the room, he locked the door, told her he had no picture book but wanted to have sexual intercourse with her. She demanded that he let her out of the room, which he refused to do, and took off his coat and vest and directed her to remove certain parts of her clothing. This she refused to do, again asked him to let her out of the room, and made an effort to open the door. After telling her that it was useless to push or attempt to open the door, he removed certain parts of her clothing, placed her on the bed and had sexual intercourse with her. He then unlocked the door and went into the hall, leaving the girl in the room. A man and woman in an adjoining room overheard the conversation and were aware of what took place. The man informed the mother of the girl, and she, in company with a friend, went up to said hallway, and found defendant there. She asked him if her daughter was in his room, and he replied she was not. In compliance with her request to show her through the house he took her into the kitchen and another room, but refused to let her into the front room, in which the girl then was, giving as his reason for such refusal that the room was rented to another person, and he had no key. The door to the room was locked, and she stated that she would get an officer and forcibly enter the room. She then left the building, whereupon the defendant unlocked the door of the room, and told the prosecutrix to run away and never return home, as if she did, her parents would kill her. The girl left the room, went down stairs, and ran in a direction away from her home. Her mother and another woman saw her leave the place and run along the street. She went to the home of a cousin, where she remained all night. After returning to her home and informing her mother of all that occurred, an examination of her person was made which showed some soreness.
Defendant denied having had intercourse with the prosecutrix, and endeavored to show that this prosecution was inspired by animus growing out of a prosecution instituted at his instance against a certain woman alleged to have been illicitly cohabiting with a brother of the prosecutrix. One of the defendant's witnesses, by name Ethel Washington, testified that she had possession of the front room in Swain's apartments on December 1st, from seven o'clock in the morning until nine o'clock in the evening, and that she neither heard nor saw anything corroborating the State's testimony. Several witnesses were examined upon...
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