Opinion
No. 38253.
March 25, 1943.
1. CRIMINAL LAW: Crime Against Nature Per Os: Submissible Case. The State's case was based on the testimony of two children, aged 6 and 8, that the act was performed on each of them while defendant was driving a car on a crowded street. Defendant is not entitled to be discharged.
2. CRIMINAL LAW: Evidence: Trial: Refusal to Permit Jury to Take Exhibits: Error of Law of Trial Court: Rule in Rape Cases Applied; Reversible Error in Close Case. The trial court refused to permit the jury to take certain exhibits with them to the jury room, basing his ruling on the erroneous belief that he had no discretion in the matter. This was an error of law, and was highly prejudicial, since the exhibits were plats and photographs of the congested streets traversed while the crimes were supposed to have been committed, and would tend to further discredit an improbable and contradictory story of the State's chief witnesses, two children 6 and 8 years old. The crime was a revolting one, and, by analogy, the rule in rape cases should be applied, that impartial administration of justice is peculiarly essential in such cases. The case being a close one on the facts, the action of the trial court was reversible error.
3. CRIMINAL LAW: Crime Against Nature Per Os: Intent not an Issue. Intent was not an issue, and there should be no instruction thereon.
4. CRIMINAL LAW: Witnesses: Failure of State to Produce: Refusal of Instruction Proper. The court properly refused an instruction as to a presumption from failure of the State to produce an available witness. This is an inference of fact, not a presumption of law, and an instruction thereon would constitute improper comment on the evidence.
Appeal from Jackson Circuit Court. — Hon. Ben Terte, Judge.
REVERSED AND REMANDED.
Clyde Taylor for appellant.
(1) The lower court erred in refusing to permit the jury on request by defendant to take the exhibits to the jury room during the jury's deliberation on the ground, as stated by the court that it had no power or authority to grant such permission over the objection of the State and that it had no discretion in the matter. In this connection the court erred in failing and refusing to exercise a discretion imposed in it by law. The lower court did have the power within its sound and judicial discretion to permit the exhibits so to be taken. In the court's refusal to exercise such discretion it denied to defendant an absolute legal right to have the court do so. This is error. Cases holding that whether a jury shall be permitted to have the exhibits during deliberation rests in the sound discretion of the court. 64 C.J. 1026; Toledo Co. v. Cameron, 137 F. 48; Cudahy v. Skoumal, 125 F. 470; Cornelius v. Grant, 8 Mo. 59; Henger v. Imboden, 12 Mo. 85; Stone v. McWilliams, 98 S.W. 828; Brown Shoe Co. v. North, 126 S.W. 988; Dougherty v. Gast, 95 S.W.2d 877; State v. Johnson, 71 Mo. 613; Abbotts Civil Jury Trials (3d Ed.), p. 717; Sinter v. Railroad, 121 N.W. 113; Koosa v. Warten, 48 So. 544; Blackburn v. Railroad, 87 N.E. 579; Louisville v. Berry, 28 S.W. 499; Linck v. Lumber Co., 15 S.W. 208; Illinois Co. v. Raff, 34 P. 545; Blazinski v. Perkins, 45 N.W. 947; Porter v. Mount, 45 Barbour, 422. (2) Cases holding that it is reversible error for a court to refuse or to fail to exercise a discretion imposed in it by law on the mistaken belief that it is without discretion, or for any other reason. The refusal to exercise a legal discretion is in and of itself error and deprives the defendant of an unqualified legal right. Cohen v. Young, 127 F.2d 721; Middleton v. K.C. Pub. Serv. Co., 152 S.W.2d 154; Filton v. Spiro, 78 F. 576; Mattox v. United States, 146 U.S. 140; 4 C.J. 798; 3 Am. Jur. 526; Hite v. Dell, 73 A. 72; Johnson v. Shumway, 26 A. 590; Martin v. Bank, 42 S.E. 558; Seibert v. Railway, 57 N.W. 1068; Avery v. Bowman, 39 N.H. 393; 20 R.C.L. 275; 3 C.J. 874; Ogden v. United States, 112 F. 122; Ford v. Hotel Co., 271 F. 625; Aden v. United States, 284 F. 13; Vastine v. Bailey, 46 Mo. App. 413; Iba v. Railroad, 172 Mo. App. 141, 157 S.W. 675; State v. Carmen, 41 S.W.2d 902. (3) The lower court erred in giving State's Instruction 4 on the question of intent. There was no issue of intention in this case. The instruction was upon a false issue, distracted the attention of the jury from the real issue of the case, was misleading and was reversible error. Cases holding that in this character of a case there is no issue of intent and no room for an instruction upon intent. State v. Sanders, 252 S.W. 973; State v. Spray, 74 S.W. 846; State v. Austin, 234 S.W. 802; Crinnian v. United States, 1 F.2d 643; Marshall v. United States, 197 F. 511; Fish v. United States, 251 F. 544; Grantello v. United States, 3 F.2d 117; 16 C.J. 589; McDaniel v. United States, 264 F. 733; Willetts v. State, 21 A. 327; State v. La Page, 57 N.H. 245; Regina v. Oddy, 5 Cox, l.c. 210; 4 English in Equity 572; People v. Sharp, 107 N.Y. 427. (4) Cases holding that an abstract statement of the law upon an issue not in the case tends to broaden the issues, to confuse the jury and to invite error, and that the giving such an instruction is reversible error. Lewis v. K.C. Pub. Serv. Co., 17 S.W.2d 359; Wilsch v. Gleifort, 259 S.W. 856; Moran v. Railroad, 255 S.W. 331; Salmon v. Helena Box Co., 158 F. 300; Schipper v. Brashier, 132 S.W.2d 993; Humphreys v. Railroad, 83 S.W.2d 589; King v. Reith, 108 S.W.2d 1; Purles v. Feldman, 28 S.W.2d 375; Birdsong v. Jones, 30 S.W.2d 109; Christian v. Reichholdt, 150 S.W.2d 527; Gillog v. Commission, 153 S.W.2d 26. (5) Cases holding that error is presumed to be harmful and that the burden is on him in favor of whom error is committed to demonstrate that no conceivable injury could have resulted. Avery v. Ins. Co., 280 S.W. 726; Perry v. Van Matre, 161 S.W. 643; Brown v. Railroad, 281 S.W. 452; Maloney v. Bank, 232 S.W. 133; Aronvitz v. Arky, 219 S.W. 620; Lester v. Hughley, 230 S.W. 355. (6) The rule is particularly applicable to criminal cases. State v. Shipley, 74 S.W. 612; State v. Allen, 246 S.W. 946; State v. Wilson, 148 S.W. 534; State v. Burryard, 161 S.W. 756; State v. Fleetwood, 127 S.W. 934; State v. Richards, 67 S.W.2d 58; State v. Banton, 111 S.W.2d 516; State v. Sanders, 232 S.W. 973. (7) The court erred in refusing to give defendant's requested Instruction E explaining to the jury the legal effect of the failure of a party to produce a material witness where the circumstances are such that such party would be expected to call such witness. 2 Wigmore on Evidence (3rd Ed.), sec. 285; 22 C.J. 116; 64 C.J. 513; 31 C.J. 853. See Missouri cases collected in 31 C.J.S., p. 853, note 4; State v. Huff, 61 S.W. 900; Cass County v. Greene, 66 Mo. 498; Russell v. Franks, 120 S.W.2d l.c. 41; Baker v. Railroad, 39 S.W.2d 535; Alexander v. Railroad, 38 S.W. 1023; State v. Trimble, 260 S.W. 1000; Koontz v. Railroad, 253 S.W. 413; Dunkeson v. Williams, 242 S.W. 653; Brigham v. Zollman, 220 S.W. 911; McCord v. Schaff, 216 S.W. 320; Early v. Ins. Co., 144. S.W.2d 860; Parsons v. Bank, 114 S.W.2d 203; McNicholas v. Banking Co., 112 S.W. 849; Streck v. Gas Co., 23 S.W.2d 1104; Beck v. Hauling Co., 293 S.W. 449; Tabor v. Bolt Co., 274 S.W. 911; 31 C.J., pp. 722, 732, 735. (8) The lower court erred in refusing to grant defendant's requested instruction in the nature of a demurrer to the evidence. The cases bearing upon this question are cited under the assignment of error that the verdict is not sustained by the evidence and that it is the duty of this court, as well as it was the duty of the lower court, to set the verdict aside. Cases holding that a sexual crime is a charge easily made, hard to prove and almost impossible to be defended against by one, no matter how innocent, and that it is the duty of the court to scrutinize the evidence and to set aside verdicts that aren't sustained by substantial, believable evidence. That the appellate courts will not hesitate to set aside verdicts in excess of this character where the conviction, from the whole record, is a manifest miscarriage of justice. 1 Hale Pleas of the Crown 635; State v. Seay, 222 S.W. 427; Curby v. Territory, 42 P. 953; Bueno v. People, 1 Colo. App. 232; Crockett v. State, 4 Ga. 185; Smith v. State, 77 Ga. 705; State v. Anderson, 59 P. 108; State v. Tomlinson, 11 Iowa 401; State v. Connelly, 57 Minn. 482; Oleson v. State, 11 Neb. 276; Matthews v. State, 19 Neb. 330; Reynolds v. State, 27 Neb. 90; State v. Hilberg, 22 Utah, 27; Conners v. State, 47 Wis. 523; State v. Burgdorf, 53 Mo. 65; State v. Wilson, 91 Mo. 410; State v. Katz, 181 S.W. 425; State v. Atkins, 237 S.W. 427; State v. Lawhorn, 157 S.W. 344; State v. Remley, 237 S.W. 489; State v. McCrackin, 162 S.W.2d 853; State v. Wade, 268 S.W. 52; State v. Eslick, 216 S.W. 976; Burkett v. Gerth, 253 S.W. 199. (9) The Supreme Court has the power to grant a new trial on the ground the verdict is against the weight of the evidence. It is the duty of the court to exercise such power where the evidence of guilt cannot be believed by reasonable men. State v. Liston, 292 S.W. 45; State v. Prendible, 65 S.W. 559; State v. Francis, 98 S.W. 11; State v. Primm, 11 S.W. 732; State v. Huff, 621 S.W. 900; State v. Packwood, 26 Mo. 340; State v. Mansfield, 41 Mo. 470; State v. Gregory, 96 S.W. 47; King v. K.C. Life Ins. Co., 164 S.W.2d 465; State v. Liston, 292 S.W. 45; State v. Cohen, 100 S.E.2d 547; State v. Wilkins, 100 S.W.2d 893; Water v. Alt, 152 S.W.2d 141; State v. Martin, 162 S.W.2d 851; King v. Life Ins. Co., 164 S.W.2d 459.
Roy McKittrick, Attorney General, and Russell C. Stone, Assistant Attorney General, for respondent.
(1) The information is sufficient. Sec. 4650, R.S. 1939; State v. Hubbard, 295 S.W. 788; State v. Gurnee, 274 S.W. 58, 309 Mo. 6. (2) The verdict is in proper form and responsive. State v. Hannon, 7 S.W.2d 278; State v. Gurnee, supra. (3) There was substantial evidence to sustain the verdict. State v. Hubbard, supra; State v. Gurnee, supra. (4) Appellant assigns as error the giving of Instruction 4 at the instance of the State over his objections. State v. Futrell, 46 S.W.2d 588, 329 Mo. 961; Missouri Digest, Key No. 1176 (6); State v. Burgess, 193 S.W. 821. (5) Appellant assigns as error the failure of the court to give his instruction designated "E". Sec. 4125, R.S. Mo. 1939; State v. Reynolds, 131 S.W.2d 552, 345 Mo. 79. (6) Appellant assigns as error the failure of the court to permit exhibits to be taken into jury room during their deliberations. Sec. 4124, R.S. Mo. 1939; State v. Rusow, 106 S.W.2d 429.
Appellant was convicted under Sec. 4650, R.S. 1939 (13 Mo. St. Ann., Sec. 4650), of a crime against nature per os and sentenced to ten years' imprisonment. He appealed.
The offense is alleged to have been committed on Labor Day, September 1, 1941, about 1:00 P.M., in an automobile operating over the public streets of Kansas City, Missouri, on Arlene, a girl of eight years. After lunch (which was had between 12 N and 12:30 P.M.), Arlene and her sister Myrna, aged six, went out on 28th street, just east of Grove street, to play with some children. Appellant lived with his second wife in the thirty hundred block on Paseo. He was forty years of age, the father of two sons by his first wife. He had been for sixteen years and was employed as a receiving and paying teller at a bank, had been a musician and also was interested in sound effects, having a laboratory in the Midland Building and his two-door Ford sedan, equipped with old style gear lever shift, was filled with equipment of that nature back of the driver's seat. About 1:00 P.M. he started to the Midland Building, proceeded north on Paseo and turned west into 28th street. He had previously roomed with Arlene's family and, noticing the children playing, he turned around and drove back to where they were and stopped. Arlene testified that Myrna saw appellant first and went out to the car and she followed; that appellant asked them how they were and if they wanted to go for a ride. They got into the Ford car, Arlene sitting next to appellant and Myrna by the window. Appellant then drove east about one-half block to Paseo, thence south on Paseo to 31st street, thence west one block on 31st to Tracy street, thence north on Tracy to 28th, thence east on 28th to where the children had left their playthings and let them out. The evidence established that the traffic was heavy on Paseo and also on 31st street. Arlene testified appellant stopped for a traffic light at 31st street and "unzipped" his trousers. Then, after turning north on Tracy, appellant instructed Arlene as to what to do and pushed her head down. The child complied, stating appellant had an emission but that she was again sitting up when they were about at a stone church. This church was on Tracy, 420 feet north of 31st street. Then, according to the children, appellant had them change places in the car and the act was repeated with Myrna, who was again sitting up in the automobile before it reached 28th street. Appellant testified that nothing out of the ordinary occurred on the ride, which took but a short time. He did not know the cross-streets on Tracy. The children testified that appellant asked them several times while on Tracy on which cross-street to turn and that he turned on 28th street when they told him.
[383] Appellant, in an effort to secure his discharge in this court, stresses a number of statements coming from Myrna. Without stating the evidence in greater detail, we are inclined to believe a conviction could not be upheld on Myrna's testimony, which has inconsistencies within itself and stands discredited by prior statements. According to the undisputed showing the offense with Arlene, if one were committed, consumed approximately eleven seconds. Her testimony may stand discredited to a certain extent, but after studying the instant record we feel we may not properly sustain appellant's contention that he is entitled to his discharge notwithstanding one's credulity, taking the case in its entirety, is taxed by the State's case. The judgment, however, must be reversed on account of error next mentioned.
Statements made by Arlene and Myrna and appellant were received in evidence. Inconsistencies existed between the statements made by the children and their testimony. A plat covering the route traversed and photographs tending to show the usual amount of traffic on the streets involved and the construction of appellant's automobile were also introduced. Appellant requested that the jury be permitted to take all the exhibits with them upon their retirement to consider their verdict. The request was refused on the State's objection. Appellant's counsel thereupon inquired if the court were exercising its discretion in the matter in refusing the request. The court replied: "Certainly not. My only reason for refusing the request is that it is my understanding of the law that I have no discretion in the matter, that if either the State or the defendant objects to exhibits going to the jury I cannot allow them to go."
The court clearly was in error in its understanding of the applicable law, such permission being within the exercise of a sound discretion on the part of the trial court. State v. Rusow (Mo.), 106 S.W.2d 429, 430[2]; Dougherty R.E. Co. v. Gast (Mo. App.), 95 S.W.2d 877, 880[4], each citing earlier authority. Having failed to exercise the discretion within its authority, the issue presented is one of law and not of the soundness of a discretion exercised as the exercise of a reasonable discretion contemplates the power and liberty of action in conformity with one's judgment of what is just and proper in the circumstances and is defeated if bounded by hard and fast rules. The heinousness of the instant charge arouses such righteous indignation as to permit of the triers of the fact being easily imposed upon. The accusation is hard to defend. The prudent observance of those precautions sanctioned by the experience of mankind is peculiarly essential to the impartial administration of the legal rights of the State and the accused. Much of what Lord Chief Justice Hale observed with respect to the offense of rape is applicable. 1 Hale P.C. 635; State v. Burgdorf, 53 Mo. 65, 67; State v. Jaeger, 66 Mo. 173, 176; State v. Donnington, 246 Mo. 343, 354 (III), 151 S.W. 975, 978[4]. See authorities compiled in State v. Remley (Mo.), 237 S.W. 489, 491[2].
The court's stated judgment was that the jury should have the exhibits during its deliberations. In addition, the instant case is close on the facts. Error resulted in the court's failure to exercise its own discretion in the matter. Errors in the refusal to exercise a discretion frequently may be corrected by remanding the cause for the exercise of the discretion. The instant situation differs as the correction of the error involves action on the part of the jury and the court sufficiently indicated of record what its discretion was but refused to exercise it on account of a misunderstanding of the law. State ex rel. v. Camren, 226 Mo. App. 100, 41 S.W.2d 902; Vastine v. Bailey, 46 Mo. App. 413, 416. Consult Middleton v. Kansas City Public Serv. Co., 348 Mo. 107, 116[2], 152 S.W.2d 154, 159[5]; Iba v. Chicago, B. Q. Rd. Co., 172 Mo. App. 141, 151 et seq., 157 S.W. 675, 678 et seq., quashed on certiorari but carrying dictum approving ruling on issue now before us in State ex rel. Iba v. Ellison (Banc), 256 Mo. 644, 666, 165 S.W. 369, 375.
See also: 3 Am. Jur., p. 526, n. 10; 24 C.J.S., p. 746, n. 99; p. 780, n. 48; 17 C.J., p. 248, n. 1; 5 C.J.S., p. 477, Sec. 1585, n. 39; 4 C.J., p. 798, Sec. 2755, n. 29; Cohen v. Young, 127 F.2d 721, 725[5]; Felton v. Spiro, 78 F. 576, 581; Ader v. United States, 284 F. 13, 30[14]; Hite v. Dell (N.J.), 73 A. 72[3]; Johnson v. Shumway (Vt.), 26 A. 590, 591; Martin v. Bank of Fayetteville, 131 N.C. 121, 42 S.E. 558[3]; Seibert v. Minneapolis St. L. Ry. Co., 58 Minn. 58, 57 N.W. 1068, 1070; Avery v. Bowman, 39 N.H. 393, 395.
[384] Appellant attacks an instruction on intent, saying intent was not an issue. The State's brief so concedes, stating the instruction was unnecessary. It may be omitted.
The court refused appellant's instruction, intended to apply to certain persons at the home of the girls, to the effect that failure to produce an available witness "authorizes a strong presumption that the testimony of such witness" would have been adverse. Among the reasons we consider the refusal not error is: Such an inference has been held an inference of fact, not a presumption of law, and an instruction thereon would constitute an improper comment on the evidence. Hartman v. Hartman, 314 Mo. 305, 311, 284 S.W. 488, 489[2]; Crapson v. United Chatauqua Co. (Mo. App.), 37 S.W.2d 966, 967[2].
The judgment is reversed and the cause remanded. Westhues and Barrett, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.