The State v. Wellman
| Decision Date | 09 December 1913 |
| Parties | THE STATE v. JOSEPH WELLMAN, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Criminal Court. -- Hon. Ralph S. Latshaw, Judge.
Reversed and remanded.
H. A Owen, F. W. Paschal and C. B. Leavel for appellant.
(1) The information filed fails to state a cause of action. The section of statute under which this case was tried is as follows: Sec. 4726, R.S. 1909. The statute is in derogation of common law, and must be strictly construed. At common law sodomy is the carnal copulation by human beings with each other against nature or with a beast, in which sense it includes crimes against nature, bestiality and buggery. In its narrower sense, sodomy is the carnal copulation between two male beings per anum. At common law sodomy could not be committed except by penetration of the organ into the person or body of another. The statute enlarges the definition of the crime so as to include the use of the mouth, but it does not exclude from the common law meaning that penetration is a necessary element of the crime. The defendant could not penetrate the female organ with his mouth, and therefore the offense charged under the statute cannot come within the meaning of sexual intercourse as known to the common law. The act must be per anum. Prindle v. State, 31 Tex. Cr App. 551. Penetration is an essential element at common law. State v. Vickman, 52 La. Ann. 1921; Green v State, 79 S.W. (Tex. Cr. App.) 304; Cross v. State, 17 Tex.App. 476; Commonwealth v. Thomas, 1 Va. Cas. 307, 12 Coke, 37; Foster v. State, 1 Ohio Cir. Ct. 467. The information states that the defendant had carnal knowledge of the prosecutrix by the use of his mouth and tongue. The charge is in itself an impossibility. It was not sufficient to apprise the defendant of the nature of the offense with which he was charged. It describes the offense against nature by defining it as having sexual intercourse with the prosecutrix with the mouth. Sexual intercourse can only be had by persons or beings of the opposite sex, and with the sexual organs. The statute does not make sexual intercourse a crime, and it is impossible in nature, a fact known to all mankind, that sexual intercourse cannot be had with the mouth. (2) The evidence of the prosecutrix is utterly unworthy of belief. (3) The court did not instruct on all the law of the case, as by statute he is required to do so. If a crime had been committed against the prosecurtix, her testimony shows that she was a willing participator in the crime, and as such was equally guilty with the defendant, and her testimony, uncorroborated, should not have convicted him, and the court should have so instructed the jury. In a criminal prosecution it is the duty of the court to give all necessary instructions, whether they are requested or not. State v. Branstetter, 65 Mo. 149; State v. Palmer, 88 Mo. 568; State v. Hensen, 106 Mo. 66; State v. Nelson, 118 Mo. 124; State v. Rufus, 149 Mo. 406; State v. Brugdorf, 53 Mo. 67; State v. Wilkins, 221 Mo. 450. (4) The court permitted the prosecuting attorney to continually make slurring remarks concerning the defendant and concerning the witnesses of the defendant, during the introduction of testimony, over the objections and exceptions of the defendant, and the court, in ruling on objections offered by defendant, many times, as shown in the statement of evidence herein, made comments that were calculated to and undoubtedly did prejudice the minds of the jury. (5) The court permitted Mr. Curtin, the public prosecutor, against the objections and exceptions of defendant, in his argument to the jury, to make many statements outside the record concerning the defendant, and to call the defendant vile and abusive epithets, all calculated to prejudice the minds of the jury against the defendant and his testimony.
John T. Barker, Attorney-General, and Ernest A. Green, Assistant Attorney-General, for the State.
(1) The information is not attacked anywhere in the record except in the motion in arrest of judgment and we shall not dwell upon the question of its sufficiency as it charges the offense in the language of the statute and is in approved form. Laws 1911, p. 198; Sherwood's Commentaries on Crim. Law, chap. 63, p. 515; 2 Chit. Crim. Law, p. 49; Kelley's Crim. Law and Prac. (3 Ed.), sec. 936, p. 838. (2) The State had proof upon everything required to constitute the offense and to fix the venue, and under appropriate instructions the jury returned a verdict of guilty. This court under such circumstances will not convert itself into a trier of facts and undertake to find a different result from that of the jury. State v. Wilkins, 221 Mo. 444; State v. Matthews, 202 Mo. 147; State v. McCullough, 171 Mo. 574; State v. Tetrick, 199 Mo. 100; State v. Williams, 199 Mo. 137; State v. Dilts, 191 Mo. 665; State v. Duesenberry, 112 Mo. 293. (3) There was no error in admitting the testimony of Jacob Fromson with reference to the defendant's general reputation for comitting this particular character of crime. State v. Oliphant, 128 Mo.App. 261; State v. Shields, 13 Mo. 236; State v. Beckner, 194 Mo. 281; State v. Pollard, 174 Mo. 607. However, in any event, the ruling excepted is not subject to review, as no objection was made until after the question had been answered. Defendant waived his right to have the testimony excluded by thus waiting until he saw that the answer to the question was unfavorable. Stewart v. Watson, 133 Mo.App. 44. (4) The motion for a new trial assigns improper conduct on the part of the prosecuting attorney. The remarks complained of in the tenth ground of his motion for a new trial cannot be reviewed, as they are not set forth therein. If defendant wishes to have remarks of the prosecuting attorney reviewed in the appellate court, he must set them out in his motion for a new trial. State v. Miles, 199 Mo. 547. No request was made by defendant's counsel for the court to rebuke the prosecuting attorney for referring to Ida M. Sours as a prostitute. Furthermore, there was no exception taken to the language used by the prosecuting attorney. Unless the defendant asks the trial court to rebuke the prosecuting attorney for improper remarks made, and excepts to the court's failure to do so, the propriety of such remarks or of such ruling, though objected to at the time, cannot be considered an appeal. State v. Chenault, 212 Mo. 137; Champagne v. Hanley, 189 Mo. 709; State v. Valle, 196 Mo. 29. With reference to the remark complained of in the fifteenth ground of defendant's motion for a new trial, there was nothing improper in what the prosecuting attorney said. Such testimony had been introduced for the purpose of affecting defendant's credibility. But it even if there had been, there was no request made for the court to rebuke the prosecuting attorney and no exception taken to the failure of the court to do so. State v. Rasco, 239 Mo. 579; State v. McMullin, 170 Mo. 632; State v. Murphy, 201 Mo. 691; State v. Harvey, 214 Mo. 411.
BROWN, P. J. Walker, J., concurs; Faris, J., concurs in all of opinion except paragraph one, as to which he is dubitante.
Convicted of the crime against nature as defined by the Laws of 1911, p. 198, defendant appeals from a judgment of the criminal court of Jackson county sentencing him to a term of three years in the penitentiary. The following is a summary of the evidence.
During the months of December, 1912, and January, 1913, the defendant kept a rooming house in Kansas City, Missouri, which house he had operated for five years. A few doors from defendant's rooming house was a jewelry store owned by one Louie Shaffer, in which store defendant was employed as an optician. In the same store was employed one Belle Shaffer, a sixteen-year-old sister of Louie Shaffer. Belle Shaffer testified that during the absence of her brother from the store defendant made love to her; kissed her, made her some small presents, and asked her to marry him; that he told her that her brother was going to fail in business and he would take care of her.
That defendant requested her to go with him to a room on Union Avenue in Kansas City, where he would tell her an important secret about her brother's jewelry business, and that having gained her confidence she went with him as requested. That when they entered the room defendant locked the door and solicited her to have sexual intercourse with him; that she refused, and that he then threw her down on a bed, put his head under her clothes and inserted his mouth into her private parts, keeping her in that position for about an hour. That at his request she met him outside the store almost every other day for a period of about two weeks, when they would go to his room and defendant would repeat this crime against nature. That defendant warned her that they would both be prosecuted if she told anyone what he had done.
In the month of July, 1913, Belle Shaffer informed her mother and brother Louie of defendant's crime, and her brother took her to the prosecuting attorney's office and procured a warrant for defendant. There was evidence that Belle Shaffer was afflicted with melancholy about five or six months after the commission of the alleged crime upon her by defendant, and that she acted as though she was losing her mind, but this evidence was withdrawn from the jury by instruction. There is no evidence that defendant and Belle Shaffer were ever seen together outside the jewelry store, except on one occasion when defendant accompanied her and his wife to a store and purchased each of them a coat. It does not clearly appear who paid for the coats. Belle Shaffer further testified that she did not know that defendant was married; that in...
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