The State v. Vickers

• Decision Date: 24 December 1907
• Citation: 106 S.W. 999,209 Mo. 12
• Parties: THE STATE v. JAMES W. VICKERS, Appellant
• Court: Missouri Supreme Court

106 S.W. 999

209 Mo. 12

THE STATE v. JAMES W. VICKERS, Appellant

Supreme Court of Missouri, Second Division

December 24, 1907

Appeal from Lewis Circuit Court. -- Hon. Chas. D. Stewart, Judge.

Affirmed.

Silver & Brown for appellant.

(1) (a) The court committed error to the prejudice of defendant in its rulings on the evidence offered by defendant on the trial of the question of the change of venue. The objections of the State to the testimony of Dr. Knight, that "the sentiment was against the defendant," were improperly sustained, and the answer of the witness was erroneously stricken out. The same is true of the testimony of the witness, Dr. Knight, that "the people were highly incensed at the time," and that there was a great deal of talk about defendant, and that the talk was unfavorable. So the court also committed error in excluding or striking out the testimony of the witness, George Raine, to the effect that he had heard threats of lynching defendant. State v Burgess, 78 Mo. 236. (b) The court also committed error in denying defendant a change of venue. Kuenzel v Stevens, 155 Mo. 285; State v. Goddard, 146 Mo 183. (2) The trial court also committed error in overruling plaintiff's objection to J. M. Brown as a juror, and in accepting him on the panel of forty. It is the undoubted rule of this court that a person accused of crime is entitled to a full panel of competent jurors before he can legally be called upon to make his challenges. State v. Davis, 66 Mo. 684; State v. Cullen, 82 Mo. 623; State v. Foley, 144 Mo. 600; R. S. 1899, sec. 2616. (3) (a) Instruction 4 is generally objectionable because the effect of it was to single out the evidence of the prosecutrix, as to defendant's demeanor, and to direct the special attention of the jurors to it, and this is true, although it was attempted to tone down the instruction with the words "with all the other facts and circumstances introduced in evidence." "The instruction was erroneous because it was a plain comment on the evidence. It singled out certain evidence, which was properly enough before the jury, and gave it a marked prominence. The jury were authorized to weigh these circumstances (referred to in the instructions), but it was not the duty or right of the court to thus comment on them." State v. Rutherford, 152 Mo. 133; State v. Hibler, 149 Mo. 479; State v. Sivils, 105 Mo. 531; Swink v. Anthony, 96 Mo.App. 426; R. S. 1899, sec. 2639. (b) Instruction 5 given for the State is still more vicious than 4. State v. Rutherford, 152 Mo. 124; State v. Drew, 179 Mo. 315; State v. Evans, 158 Mo. 589. The evidence does not show that defendant, when accused of the crime, made any statements, false or otherwise, about matters likely to lead to his detection. State v. Weaver, 65 Mo. 7. (4) The story of the prosecuting witness is, in substance, that the alleged rape on her person occurred at her home in daylight within the call of her mother; that defendant took off her drawers, laid her over the bed, had sexual intercourse with her for the first time, making full penetration of her person without hurting her; that she did not say "quit" or a word during the whole time; making no objections whatever to his conduct; that she suffered no pain or injury to her person; that no stains were made on her clothing or on the bed spread; that she got up and picked up her drawers, which were lying on the floor and went into the next room and put them on; that she afterwards went down stairs and went out into the garden to help her father about some matters without telling him what had occurred; that she went to the dinner table and then out in the yard to feed the turkeys and chickens and still said nothing about defendant's conduct; that she also went across the lot near the house with defendant, to look at a pony, and that later on, after her return from this latter mission, she called her mother out in the yard and informed on defendant. The foregoing story is surely a very remarkable one, contrary certainly to human experience -- really incredible. The defendant testified in his own behalf and denied the accusation. The evidence, taking it altogether, is insufficient to support a conviction, and this case falls within the rulings of this court made in the following cases: State v. Burgdorf, 53 Mo. 65; State v. Jaeger, 66 Mo. 173; State v. Primm, 98 Mo. 368; State v. Patrick, 107 Mo. 164. But even if we are not correct in our last contention, yet we submit that "Where a verdict is evidently prompted by prejudice, passion or partiality, and is not the result of the calmer weighing of the facts in evidence, which should always characterize the deliberations of a jury, the Supreme Court will interfere." State v. Prendible, 166 Mo. 353. The quantum of punishment is an important element in a criminal charge -- most important to the accused -- and where the punishment, as in this case, of fifty years in the penitentiary (equivalent to a life sentence) is assessed, we think the principle last above stated, as announced by this court, applies, and for this reason also submit that a new trial ought to be awarded by this court.

Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.

(1) No error was committed by the trial court in refusing defendant's application for a change of venue from Lewis county. True, defendant offered several witnesses, who testified that in their judgment there was prejudice existing in said county against defendant; but this evidence was contradicted by a number of witnesses for the State, who testified that defendant could have a fair trial there. The granting of such an application is a matter resting in the sound discretion of the trial judge, as this court has often said. State v. McCarver, 194 Mo. 734; State v. Albright, 144 Mo. 642; State v. Wilson, 85 Mo. 139; State v. Whitten, 68 Mo. 91; 1 Bishop's New Crim. Proc. (4 Ed.), 72. (2) The instruction on the subject of verbal admissions made by defendant has been approved by this court. State v. Darrah, 152 Mo. 522; State v. Brown, 104 Mo. 375. (3) There was certainly substantial evidence tending to show that defendant was guilty, and, when that is true, this court will not attempt to weigh the evidence, but will affirm the judgment. State v. Dilts, 191 Mo. 665; State v. Miller, 191 Mo. 587; State v. Dusenberry, 112 Mo. 293. (4) Not only was the State's evidence sufficient to submit the case to the jury, but the State's evidence made out a strong and an aggravated case against defendant. To prove conclusively that defendant committed the crime, we have simply to consider the conversation that he had over the telephone with Mr. Nelson at seven o'clock a. m., in which he wanted to know how the father of prosecutrix felt, and, on learning that he blamed defendant, defendant said to Mr. Nelson: "He ought not to, he has only heard one side of it; the guilt is on one as much as the other." When the exceedingly damaging admissions that defendant made to Mr. Nelson, Mr. Taylor and Sheriff Primrose, after his arrest, and the equally damaging admissions that he made to Mrs. Burnett and Mrs. Taylor on the afternoon of the assault are all considered, we are forced to the conclusion that his guilt was established beyond all doubt.

GANTT, J. Fox, P. J., and Burgess, J., concur.

OPINION

GANTT, J.

This is an appeal from the circuit court of Lewis county. On June 16, 1906, the prosecuting attorney of Lewis county filed an information, duly verified, charging the defendant with the rape of Reba Burnett, a female child under the age of fourteen years, at the said county of Lewis, on or about the 7th day of June, 1906.

The defendant was arrested and at the September term, 1906, of the said court filed an application for a change of venue from said county on the ground that he could not have a fair and impartial trial for the reason that the minds of the inhabitants of said county of Lewis were prejudiced against him. This application was supported by two citizens of said county, and due notice of the same was served on the prosecuting attorney. Upon a hearing of the said application it was refused and the defendant saved his exception to the action of the court in denying him a change of venue.

At the same term the defendant was duly arraigned and entered a plea of not guilty. At an adjourned term of the said court in October, 1906, the defendant was put upon his trial and convicted and his punishment assessed at fifty years in the penitentiary. In due time he filed his motions for new trial and in arrest of judgment, and the same were overruled and exceptions duly saved and an appeal granted to this court.

The evidence on the part of the State tended to show that the prosecutrix at the time of the alleged rape was living with her father and mother on a farm near Lewiston, in Lewis county, Missouri, and was of the age of thirteen years and ten months. The defendant is a first cousin and brother-in-law of the mother of the prosecutrix. It appeared further, that for some time prior to the date of the alleged offense the defendant had been residing in the State of Colorado, and a few days prior to the alleged offense had come to Lewis county and to the residence of the father of the prosecutrix, on the evening of June 5th, 1906, and remained all night. On the 6th he visited another relative of his in the neighborhood and returned to the Burnett home on the morning of June 7th. The State's evidence tended to show that between half past ten and eleven o'clock in the forenoon the defendant was in the kitchen talking to the mother of the prosecutrix when the latter told the prosecutrix to go upstairs and clean up the bedrooms and move the defendant's grip from the west room into...