Opinion
December 12, 1927.
1. WITNESS: Indorsement During Trial. The trial court has a large discretion in the matter of indorsing the names of witnesses on the information after the trial has begun, and a judgment will not be reversed on that ground unless it appears that defendant was prejudiced by the belated indorsement; and where an earlier indorsement would not have been of any advantage to defendant, he did not move to quash, or ask a continuance, or pray for time or opportunity to investigate the truth of the witness's testimony, the indorsement was not prejudical; and particularly so where the witness's testimony added nothing to what had already been proved.
2. ____: Exclusion from Court Room. An assertion in the motion for a new trial that certain witnesses were permitted to remain in the court room after the rule requiring witnesses to remain out of the court room had been invoked, and permitted, in spite of their violation of the rule, to testify for the State, does not prove itself, and it will not be held that error was committed in that respect where the record does not show that the rule excluding witnesses had been ordered, or that the witnesses named had remained in the court room.
3. ____: Wife of Defendant: Cross-Examination: Impeachment. In trial of defendant charged with carnal knowledge with a fourteen-year-old girl, where his wife has testified for defendant concerning the conduct of the girl, that she had run around at night and that she had admitted misconduct with many men, an inquiry of the witness on cross-examination if she had not said that she did not believe the prosecutrix was guilty of misconduct with her husband and thought she was a good girl, is permissible for the purpose of impeachment.
4. EVIDENCE: Proof of Another Crime: Search of Houseboat. The charge being that the act of carnal knowledge with a fourteen-year-old girl was committed on a house-boat, and there being evidence that defendant owned the boat from the fourth to the twenty-eighth day of August and that during that period the girl lived with him on the boat, and his wife having testified particularly about his stay on the house-boat and that he was at home during the nights he was said to be on the boat, it was not error to ask her on cross-examination if he was at home the night the officers searched the house-boat there being no objection on the ground that the question tended to prove him guilty of another crime, but the only objection being that the question was not within the scope of the direct examination.
5. TRIAL: Separation of Jury: Arrest of Witnesses: Unnoticed. Objections that the court permitted the jury to separate; that the sheriff permitted the jury to attend church where a revival meeting was in progress, and that the prosecuting attorney, in the presence of the jury, ordered the arrest of two of the State's witnesses, cannot be noticed on appeal where there is nothing in the record to support any of them.
6. EVIDENCE: Statutory Rape: Prior Misconduct. Evidence of improper conduct between the defendant and the prosecutrix prior to the date of the offense of statutory rape of which he stands charged is always admissible as showing the relation of the parties.
7. ____: Inquiries Relating to Other Crimes: No Objection. If defendant did not at the time object to inquiries, by the prosecuting attorney on cross-examination of defendant's character witnesses, if they had not heard about the sheriff making a raid and getting a still off of defendant's boat, and did not make any objection to the answers to the questions, he is in no position on appeal to complain of them.
Corpus Juris-Cyc. References: Criminal Law, 16 C.J., Section 2027, p. 796, n. 55; p. 797, n. 56; 17 C.J., Section 3331, p. 56, n. 16; Section 3462, p. 170, n. 20; Section 3613, p. 280, n. 10. Rape, 33 Cyc., p. 1483, n. 95. Witnesses, 40 Cyc., p. 2501, n. 94; p. 2703, n. 43.
Appeal from Butler Circuit Court. — Hon. Charles L. Ferguson, Judge.
AFFIRMED.
North T. Gentry, Attorney-General and J.D. Purteet, Special Assistant Attorney-General, for respondent.
(1) No error was committed in permitting the State to indorse the name of Dr. I.N. Barnett on the information during the trial of the cause. Indorsement of the names of witnesses on the information during the progress of the trial lies in the sound discretion of the trial court. In the absence of anything in the record to show that the trial court abused his discretion, this court will not disturb the ruling. State v. Barrington, 198 Mo. 70; State v. Lassieur, 242 S.W. 900; State v. Glon, 253 S.W. 364; State v. Hewitt, 259 S.W. 773; State v. Glenn, 262 S.W. 1030; State v. Jackson, 186 S.W. 990; State v. Ivy, 192 S.W. 733; State v. Webb, 205 S.W. 187; State v. Kehoe, 220 S.W. 961; State v. Peak, 292 Mo. 257. (2) Assignment of error in permitting witnesses to testify in the cause without their names being indorsed on the information, presents nothing to this court for review, for the reason that no affidavit of surprise or application for a continuance was filed. State v. Whitsett, 232 Mo. 526; State v. Lawson, 239 Mo. 591; State v. Ferguson, 278 Mo. 134; State v. Lee, 231 S.W. 622; State v. Howerton, 228 S.W. 746. Indorsement of rebuttal witnesses on the information during trial is in the sound discretion of the trial court. (3) The second reason in the assignment to the effect that the foregoing witnesses were permitted to testify after the rule excluding witnesses for the State and defendant had been invoked, and after said witnesses had remained in the court room during the trial of said cause, is without merit. The record contains no evidence to show that the aforesaid witnesses had remained in the court room throughout the trial of said cause. Allegations in the motion for a new trial do not alone prove themselves. State v. Williams, 263 S.W. 197; State v. Baird, 297 Mo. 227; State v. Creeley, 254 Mo. 397. (4) The record does not show that the jury or any members thereof were permitted to separate without being in charge of the sheriff or one of his deputies; or that the members of said jury during the trial and over night were permitted to attend a revival meeting which was in progress at the Christian Church in Butler County. The record does not contain anything which would indicate to a stranger to the trial that the prosecuting attorney ordered the arrest of a state witness during the trial of the cause and in the presence of the jury, for the crime of perjury. Allegations in a motion for new trial do not prove themselves. State v. Williams, 263 S.W. 197; State v. Baird, 297 Mo. 227; State v. Creeley, 254 Mo. 397. (5) Evidence of acts of statutory rape prior to the alleged offense is competent and admissible to prove the act charged in the information. State v. Cason, 252 S.W. 689; State v. Guye, 299 Mo. 367. (6) The trial court committed no error in permitting the prosecuting attorney on cross-examination of defendant's character witnesses to elicit the fact that defendant's house-boat had been searched for illicit liquor, under authority of a search warrant. Such cross-examination is largely within the discretion of the trial court. State v. Phillips, 233 Mo. 305; State v. Harris, 209 Mo. 443. It is permissible to inquire of the character witnesses whether they have heard such and such rumors relating to the defendant, rumors of crimes or other acts which would reflect upon his character, in order to determine upon what the witness bases his judgment as to the reputation of the defendant. State v. Brown, 181 Mo. 213; State v. Parker, 172 Mo. 207; State v. Crow, 107 Mo. 346.
The appeal is from a judgment in the Circuit Court of Butler County, following a verdict of guilty on the charge of statutory rape.
Rex Baker, the defendant, on the fourth of August, 1926, became the owner of a house-boat on Black River in Butler County, and continued to own that boat until the twenty-eighth of August, when he was arrested. The evidence for the State tends to show that during that period Arminta Sims, a girl fourteen years of age, lived with him on the house-boat. At the same time and in the same house-boat one Cole Ward and a girl named Fleta Belts lived together. According to the testimony of Arminta Sims, the defendant was away only three or four nights in that period and during the rest of the time he slept with her on the house-boat, while Cole Ward slept with Fleta Belts. Before the purchase of the house-boat the defendant had stayed with her at two different hotels. In one of them he had registered as R.F. Bacon and wife. The prosecutor had Arminta say specifically that Rex Baker had sexual intercourse with her each night she stayed on the boat.
The defendant succeeded in showing that the girl had a bad reputation, but the evidence is not clear as to whether that reputation was acquired before or after her association with the defendant. At any rate, she was a waif with no home; a piece of human flotsam drifting before the winds of chance. She lived in extreme proverty. Her father, a worthless fellow, took no care of his family. He drove her away from home and swore it was on account of her conduct, but the evidence tended to show it was because he did not want to support her. She said she pretended to think a great deal of Rex, but that she didn't. She stayed with him on the boat because she had no place to go. She is spoken of in the evidence as the "little girl." She must have been small of her age; undeveloped, ignorant and helpless. The prosecutor was at pains to have her say that she understood the words used to describe the crime. Her pathetic condition doubtless influenced the jury in inflicting a heavy punishment, notwithstanding her ill repute.
The defendant denied that he sustained any improper relations with the girl; said that he kept her, along with the other girl, on the boat to do the work. Mrs. Baker, defendant's wife, testified that she took pity on the girl, because of her scant clothing and general helplessness and made clothes for her; that her husband was away from home only two or three nights while he owned the boat. The effect of the defendant's evidence was that the taking in of the girl was purely a charitable act.
The defendant tendered the issue and, with indifferent success, endeavored to show that he possessed a good reputation. The most that he could bring out in that respect was that the witnesses had never heard anyone give him a hard name. As one witness put it: "Some would say one thing, some would say otherwise." The State offered evidence tending to show that his reputation was bad, and on cross-examination of his character witnesses made it quite clear that he was engaged in bootlegging. It developed that he had gone by an assumed name — Finley — which he offered to show was his middle name. Some of the questions asked intimated that previously he had had another wife, and doubt was cast upon the validity of the later marriage. The jury found him guilty and assessed his punishment at five years in the penitentiary.
I. Appellant filed no brief here. In the motion for new trial error is assigned to the ruling of the court permitting the State's attorney to indorse on the information during the progress of the trial the name of Dr. I.N. Barnett. After the arrest of the defendant the girl was taken to a Indorsement detention home where she was kept until the trial. of Witnesses. While on the stand in re-cross examination by defendant's counsel she said she had been examined by Dr. Barnett. Thereupon the prosecutor asked leave to place the name of Dr. Barnett on the information. Defendant's attorney objected, asserting that to permit the Doctor to testify would be a surprise and he would not be in position to meet the testimony. When called as a witness in rebuttal the Doctor testified he had examined the girl and found she had experienced sexual intercourse, and had some infection, which he declined to name, for which he was treating her.
In the matter of indorsing names upon an information after trial has begun, the trial court has large discretion. [State v. Peak, 292 Mo. l.c. 257-258.] This court will not reverse a judgment on that account unless it appears that defendant was prejudiced by it. We are unable to see how an earlier indorsement of the name on the information would have had any advantage to the defendant. He did not move to quash, ask continuance, nor pray for time or opportunity to investigate the truth and character of the Doctor's testimony. Besides, the Doctor's testimony added nothing to what had already been said. The defendant did not contest the fact that the girl was not chaste, but made effort to show that she had sustained unlawful relation with other men. No fact was brought out by the Doctor's testimony which affected the situation.
II. The motion asserts that the court committed error in permitting Dr. Greathouse, Harrison Cozort and John Petty to testify after the rule requiring witnesses to remain out of the court room had been invoked, because said witnesses were allowed to remain in the court room during the trial, and Exclusion of because all their names were not earlier indorsed Witnesses. upon the information. They were character witnesses. No such objection as that in the motion was made to the testimony of Dr. Greathouse, but to the testimony of Cozort and Petty that objection was made. The motion does not prove itself. The record does not show that the rule excluding witnesses had been ordered, nor does it show that those witnesses had remained in the court room. Nor does any fact appear showing that the defendant was prejudiced or surprised by the indorsement of their names on the information. What is said above answers that objection. [State v. Glon, 253 S.W. l.c. 364.]
III. On the ground that such question was outside the examination in chief, it was claimed that the court erred in permitting the prosecuting attorney to ask the wife of the defendant on cross-examination if she had not said that she did not believe the prosecuting witness was guilty of Wife as misconduct with her husband, and thought she was a Witness: good girl. The witness had testified in her direct Impeachment. examination about the girl, her conduct and where she lived; that she knew Arminta had run around nights, and that she had admitted misconduct with many men. The question asked the witness tended to impeach the correctness of her statement and was proper.
IV. It was further complained that the court erred in permitting the State's attorney to elicit from Mrs. Baker the fact that defendant's house-boat had been searched under authority of a search warrant. The witness had testified very particularly about her husband's stay on the Other Crimes: boat. She had said he was at home during the Search of Boat. nights he was said to have been on the boat. The matter arose in explaining his whereabouts the night the girl was taken from the boat. The question asked was this: "Was the defendant at home the night the officers searched the house-boat?" There was no objection on the ground that the question tended to bring out that he was guilty of other crimes and thereby provoked a search of his boat. The objection was only that the question was not within the scope of the direct examination. It was entirely within the scope of the examination in chief, for the only answer that could be responsive to it was to locate him on a particular date.
V. Further objections were that the court permitted the jury to separate at one period; that the prosecuting attorney, in the presence of the jury, ordered the arrest of Cole Ward and Fleta Belts, State's witnesses, and that the sheriff or deputy permitted the jury to attend church where a revival Assignments: meeting was in progress. There is nothing in the No Record. record to support any of those assignments.
VI. It was claimed also that the court committed error in permitting evidence of improper conduct between the defendant and the prosecuting witness before the date of the offense of which he stands charged. Such evidence is always Prior admissible for the purpose of showing the relation Misconduct. of the parties. [State v. Guye, 299 Mo. l.c. 367; State v. Cason, 252 S.W. l.c. 689.]
VII. The State's attorney in cross-examining defendant's character witnesses asked them if they had not heard about the sheriff making a raid and getting a still off the No Objection. boat. There was no objection at the time to those questions, nor to the answers to them, so appellant is not in position to complain of them here.
The defendant had a fair trial and the record shows no error which was prejudicial to his rights.
The judgment therefore is affirmed. All concur.