The State v. Wertz

• Decision Date: 12 December 1905
• Parties: THE STATE v. LESLIE WERTZ, Appellant
• Court: Missouri Supreme Court

90 S.W. 838

191 Mo. 569

THE STATE v. LESLIE WERTZ, Appellant

Supreme Court of Missouri, Division Two

December 12, 1905

Appeal from Putnam Circuit Court. -- Hon. Paris C. Stepp, Judge.

Reversed and remanded.

N. A Franklin, B. L. Robinson and T. B. Davis for appellant.

(1) The court erred in overruling defendant's demurrer to the evidence at the close of the case. Champagne v Hamey, 189 Mo. 709; State v. Hamey, 168 Mo 167; State v. Huff, 161 Mo. 459; State v. Patrick, 107 Mo. 147. (2) The court erred in permitting witnesses to testify that from the general appearance of prosecutrix they were inclined to think she had been mistreated. Such understandings are not allowed to pass for evidence in civil cases, and this is so a fortiori in criminal cases. State v. Gritzner, 134 Mo. 525; State v. Hagan, 164 Mo. 672; Roe v. Bank, 167 Mo. 422. (3) It was error for the court to permit the State to attempt to break down the character of the defendant by the cross-examination of the witnesses Jones and Holly, by stating that since the alleged rape they had heard of other specific delinquencies of the defendant, that he had, as they had heard, been guilty of other specific offenses. All of this evidence was what the witnesses had heard in regard to the defendant's conduct after he is alleged to have outraged the prosecutrix. State v. Vandiver, 149 Mo. 502; State v. Hale, 156 Mo. 109; State v. Lockett, 168 Mo. 489; State v. Prendible, 165 Mo. 359. (4) The court erred in giving instruction 4, on behalf of the State. The instruction, instead of telling the jury to weigh the evidence of defendant's good reputation, if proven, along with the other evidence, in effect tells the jury that his good reputation is not to be considered as tending to show his innocence. Fisher v. Lead Co., 154 Mo. 479; State v. Austin, 113 Mo. 538. (5) Instruction 8, given on behalf of the State, is clearly vicious and prejudicial. Hoyberg v. Henske, 153 Mo. 74; Copeland v. Railroad, 175 Mo. 662; Markey v. Railroad, 185 Mo. 364.

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

(1) The asking of leading questions is always left to the sound discretion of the trial court. State v. Whalen, 148 Mo. 290; State v. Napper, 141 Mo. 401. (2) (a) In cross-examining State's witness William Smith, defendant's counsel proved by him that defendant enjoyed a good reputation prior to this trouble, the witness saying that he had never heard it questioned before this time. Having made Smith a witness for defendant on that subject, the State then had a right to cross-examine him. Nichols v. Nichols, 147 Mo. 387; State ex rel. v. Branch, 151 Mo. 641. (b) No error was committed in the cross-examination of defendant. The prosecuting attorney was permitted to ask defendant if he did not make certain statements to Albert Collins and to Sam Hollinger, which were contradictory to the evidence given by him in chief. He denied making any such statements; and the State, in rebuttal, then proved by said two witnesses, without objection from defendant, that defendant did make such statements. This was proper. State v. Avery, 113 Mo. 500; State v. Miller, 156 Mo. 85; State v. Miller, 191 Mo. 587; R.S. 1899, sec. 2637. (3) When a witness testifies that defendant's general reputation is good because he has heard nothing against him, it is then proper for the State to ask if he has not heard of certain matters which did reflect on his character. Neither did the court commit any error in its ruling on the cross-examination of defendant's other character witness, Holly, for the same reason. 2 Wigmore on Ev., sec. 988; State v. Young, 153 Mo. 449; State v. Westlake, 159 Mo. 679. (4) As defendant procured an instruction on the subject of the failure of prosecutrix to make complaint to the people living in the one house which she saw and passed by after the commission of the alleged crime, it was certainly proper for the court, at the request of the State, to give an instruction on the same subject presenting the State's contention. In addition the complained of instruction is the law, and it has been decided to be the law many times. One of the greatest authorities on criminal law says: "But the rule respecting the time that elapsed before the prosecutrix complains will not apply where there is good reason for the delay, as that she was under the control or influenced by her ravisher." Chitty on Crim. Law, 812; State v. Byrne, 47 Conn. 465; Higgins v. People, 58 N.Y. 377; Bennett v. State, 102 Ga. 656; Com. v. Cleary, 172 Mass. 177. (5) No error was committed in giving State's instruction 4 on the value of the evidence of defendant's good reputation. When this instruction is read in connection with defendant's instruction 8, on the same subject, it will be seen that the law was properly declared. State v. Darrah, 152 Mo. 541; State v. Matthews, 98 Mo. 130; State v. Smith, 164 Mo. 585; State v. Noeninger, 108 Mo. 166. (6) State's instructions 7 and 8, on the value of expert testimony, were correct. It is a fact well known to this court, and to every other court, that expert testimony is very uncertain and many times very unreliable. Hence the importance of properly advising the jury with reference to its value. Allen v. Railroad, 183 Mo. 437; State v. Dunn, 179 Mo. 111; Hoyberg v. Henske, 153 Mo. 74; State v. Duestrow, 137 Mo. 75; State v. Pagels, 92 Mo. 316; Rogers on Exp. Test., sec. 201; Lawson on Exp. and Col. Ev., pp. 282-284.

OPINION

FOX, J.

This cause is now pending in this court upon an appeal by the defendant from a judgment of conviction in the Putnam County Circuit Court of the offense of rape. The information, charging the defendant with forcibly ravishing Lulu Barnett, was filed on August 26, 1904. The alleged offense was charged to have been committed on June 12, 1904. On August 31, 1904, defendant was put upon his trial in the Putnam County Circuit Court upon the charge contained in the information. As the sufficiency of the information is in no way challenged, it is unnecessary to reproduce it.

The testimony on the part of the State tended to show that the prosecutrix, Lulu Barnett, and the defendant had known each other for a number of years and had lived near each other during that time, except a few years while defendant was absent in Texas. Prosecutrix resided with her parents in Putnam county; they had formerly resided in Cass county. Members of the families of prosecutrix and defendant were related by marriage. On June 12, 1904, defendant, prosecutrix and a number of other young people went together to Newton and from there to Lucerne and attended a baseball game returning to Newton about five o'clock p. m. At Newton they attended some children's exercises in the church, defendant and prosecutrix returning home together in a buggy. Prosecuting witness said that on the road about three miles from Newton, defendant attempted to take improper liberties with her in the buggy; that she resented it, and that the defendant forcibly took hold of her and choked her and a struggle ensued, and that she made all the resistance that she could until her strength gave out, and that after spending all of her efforts defendant succeeded in ravishing her. This all occurred in the buggy, and after the struggle prosecutrix was on the left-hand side of the buggy seat and defendant on the right-hand side. She further states that they drove on for some distance but that she talked but very little; she does say, however, that she said to him something about whether or not the other young folks had gotten home, and she also made some remark about the lightning bugs. She then states that after having gone some distance the defendant made a second effort to have sexual intercourse with her and that she again resisted. At this second attempt to have sexual intercourse the prosecuting witness said to him that she would not tell on him if he would let her alone. About this time prosecutrix jumped out of the buggy and the defendant's team started to run, and defendant then left the prosecutrix and took charge of his horses. The prosecutrix then made her way to the residence of E. M. Gregory, and witness states that she complained to Mrs. Gregory, telling her what defendant had done, saying that he had nearly killed her and had treated her worse than a dog. After talking with Mrs. Gregory and getting a drink of water, she was taken up to a room occupied by Miss Bertha Wood, where she went to bed and remained the rest of the night. After the family had retired, the defendant called up from the road and asked Mr. Gregory if he had a stray girl up there, to which Mr. Gregory replied that the prosecutrix was there and had gone to bed and did not believe that she cared to see him. He gave his name and then drove away. Mr. and Mrs. Gregory testified to the complaint made by the prosecutrix upon coming to the house, and that she seemed to be in a distressed and excited condition. Mrs. Gregory testified that the prosecutrix did not tell her, upon coming to the house that night, that the defendant had forcibly ravished her, and did not complain of being bruised, but told her that Leslie Wertz had treated her worse than a dog. On the next morning, however, the question being propounded to the prosecutrix by Mrs. Gregory, she stated that the defendant had forced her. Mrs. Gregory testified that prosecutrix seemed to be in distress and in trouble; had a troubled look, and that she saw a spot of blood on her underclothes; this, however, was accounted for by the fact that it was the time of her menstrual period. Prosecutrix further testified that she complained to her father and mother of this assault, and her father testified to bruises on her arms, and that she...