Opinion
June 11, 1930.
1. RAPE: Sufficient Evidence. Competent and positive testimony of the prosecutrix and the testimony of other witnesses corroborating in part her testimony are sufficient to sustain a charge of statutory rape upon a girl under sixteen years of age.
2. ____: Incompetent Evidence: Conversations in Absence of Defendant. In the trial of a defendant charged with statutory rape, testimony by the prosecutrix that she was told by another girl, not called to testify, that she was to be offered money, and that later she and said other girl met a lawyer, not then shown to have been employed by defendant but later appearing as his attorney at the trial, and by him was promised money to go to another city, and that later another man called upon her and paid her the money thus promised, is not competent evidence where there is no showing that defendant was present at any one of the conversations or meetings, and none that he had authorized any one of the three to act or speak for him in such matter; and where there is a sharp conflict in the evidence on the issue of defendant's guilt of the offense charged, the admission of such testimony is prejudicial and reversible error.
3. ____: Immorality: Specific Acts. In the prosecution of a defendant charged of statutory rape upon a girl under sixteen years of age, evidence of specific acts of her immorality is properly excluded.
4. INSTRUCTIONS: General Objections. Complaints in the motion for a new trial relating to the instructions given and refused, which are general in character, and do not specify wherein error was committed in the giving and refusing of instructions, present nothing for review in a criminal case.
5. MOTION IN ARREST: Disregarded. Motions in arrest of judgment in criminal cases have been abolished by statute, and such a motion will be disregarded.
6. INFORMATION. An information in a criminal case is a part of the record proper, and will be examined on appeal, and if found sufficient in form and substance will be approved.
Appeal from Miller Circuit Court. — Hon. R.A. Breuer, Special Judge.
REVERSED AND REMANDED.
Barney Reed and H.M. Atwell for appellant.
(1) There is no substantial evidence to support the verdict and the verdict should not stand. State v. Guye, 252 S.W. 955, 299 Mo. 348; State v. Taylor, 24 S.W. 449. (2) The verdict is against the law, as declared in the instructions given by the court. (3) The court erred in refusing to give defendant's instruction No. A. A female child is a female person between the ages of birth and puberty. Webster's Dictionary; 7 Cyc. 124; 11 C.J. 756; Blackburn v. State, 22 Ohio St. 110; Wilman v. State, 63 Tex. 623, 141 S.W. 110. (4) The court erred in giving instructions 1 to 8 on the part of the State. (5) The court erred in admitting illegal testimony, objected to by the defendant, which in part is as follows: The court permitted the prosecutrix, over the objection of the defendant, to testify that a certain man by the name of Craig had given her money to leave and evade being a witness in the preliminary hearing of this case and permitted the prosecutrix to testify to conversations had with one Pearl Watt out of, and not in, the presence of the defendant. State v. Patrick, 15 S.W. 290; State v. Patrick, 107 Mo. 147; State v. Nelson, 166 Mo. 191; State v. Darling, 202 Mo. 150. (6) The court erred in refusing competent evidence offered by the defendant for the purpose of affecting the credibility of the prosecutrix as a witness, in part as follows: The defendant offered to prove and could have proven by the witness Lawrence Peterson, specific acts of immorality that prior to the time of the offense charged he had seen prosecutrix in bed naked with one Charles George. The defendant offered to prove and could have proven by the witness William Witt that the prosecutrix and her mother had conducted a house of prostitution in the city of Eldon prior to the offense charged against the defendant and that he had visited this place and had personal knowledge of the conduct of both the prosecutrix and her mother. He offered to prove and could have proven by witness Pony Shearer that prosecutrix and her mother conducted a house of prostitution in Eldon and that such witness had seen and knew of the lewd and immoral acts of the prosecutrix. The defendant offered to prove by witness John Otten, that prosecutrix had been in the company of one Joe Summers, a married man of bad repute, in Sedalia, drunk, and that prosecutrix had been held in the house of detention and had been convicted in the juvenile court, in Sedalia, for being incorrigible, drunk, and lascivious conduct, together with a great lot more of evidence of this class offered by the defendant by these and other witnesses, such evidence offered and stated at the time of offering same for the purpose only of affecting the credibility of the prosecutrix as a witness.
Stratton Shartel, Attorney-General, and Don Purteet, Assistant Attorney-General, for respondent.
(1) The information is sufficient both as to form and substance. Sec. 3247, R.S. 1919, as amended Laws 1921, p. 284a; State v. Cason, 252 S.W. 688; State v. Turner, 274 S.W. 35; State v. Burlison, 285 S.W. 712. (2) The evidence was sufficient to take the case to the jury. Where the elements of the crime are shown by substantial evidence, this court will not disturb the jury's verdict. State v. Thomas, 1 S.W.2d 157; State v. Smith, 289 S.W. 590; State v. English, 11 S.W.2d 1020; State v. Cooper, 271 S.W. 471; State v. Catron, 296 S.W. 141; State v. Dilts, 191 Mo. 675; State v. Marcks, 140 Mo. 656. (3) The instructions given by the court are not before this court for review, inasmuch as improperly preserved in the motion for new trial. State v. Standifer, 289 S.W. 856. (4) The trial court committed no error in refusing defendant's requested instruction lettered "A." It had no place in the case, inasmuch as the statute authorizes no such interpretation of its terms. Sec. 3247, R.S. 1919, as amended Laws 1921, p. 284a. Sexual intercourse with a girl under sixteen is statutory rape. State v. Hutchens, 271 S.W. 525; State v. Gruber, 285 S.W. 426; State v. Conrad, 14 S.W.2d 608. (5) The trial court committed no error in excluding defendant's offer of specific acts of immorality as touching prosecutrix's credibility. State v. Smith, 289 S.W. 590. Such matters are provable only by general reputation. Want of chastity of prosecutrix in a statutory rape prosecution can only be shown by general reputation. State v. Taylor, 8 S.W.2d 29; State v. Nanna, 18 S.W.2d 70. (6) The trial court committed no error in permitting prosecutrix to testify that the defendant, through his attorneys, and others, gave her money to absent herself from the preliminary hearing. State v. Belknap, 221 S.W. 39. Evidence to show that the accused has attempted to fabricate or procure false evidence, to destroy evidence against himself, to corrupt the witnesses for the State, or to procure their absence by threats of violence or otherwise, is always admissible as showing a consciousness of guilt. Underhill's Criminal Evidence (3 Ed.) 291. sec. 207.
By an information filed in the Circuit Court of Miller County, the defendant and John Irwin were jointly charged with statutory rape, that is, with carnally knowing Mary Lou Monroe, a female child under the age of sixteen years. The defendant took a severance, was found guilty and sentenced to imprisonment in the penitentiary for two years, and, in due course, appealed.
The prosecutrix testified: On March 21, 1929, the time in question, she was between fourteen and fifteen years of age, living at the home of Mrs. Berry Watt in the town of Eldon, in Miller County, and working in a factory in Eldon. In the evening of March 21, 1929, she and Mrs. Watt and Mrs. Watt's daughter, Bernice, attended church services at the Nazarene Church in Eldon. The defendant and Irwin were there. She left the church building and started home with Mrs. Watt and Bernice about ten o'clock. A short distance from the church building, she saw the defendant and Irwin across the street. They called her across the street and asked her to take a ride with them in an automobile truck. She declined. The defendant told her to get into the truck and that he would take her to her home. After she got into the truck, they refused to take her to her home. They drove south several miles, in Miller County, in the direction of the town of Bagnell. They stopped first at Aurora Springs Park. Irwin exhibited a pistol and told her he knew how to use it. The defendant pulled her out of the truck, threw her on the ground, got on top of her, and had sexual intercourse with her. Irwin held her while the defendant had sexual intercourse with her. They put her into the truck, and drove to the railroad trestle south of Aurora Springs. They stopped there, and the defendant, with Irwin's help, pulled her out of the truck. Irwin held her while the defendant had sexual intercourse with her. Then the defendant held her while Irwin had sexual intercourse with her. They drove back to Eldon, and she got out of the truck about one block from her home. The next day, she told Charlottie Craig, Pearl Watt, Dr. G.D. Walker and H.W. Scott, a justice of the peace, "what happened." On cross-examination, she admitted she "put" her age at "sixteen" when she went to Eldon to obtain employment. She said she did this because she "couldn't work" if she "didn't."
We will hereinafter refer to certain testimony of the prosecutrix which was admitted over the objection of the defendant.
The State offered in evidence the "Family Record" of the Monroe family, which shows that the prosecutrix was born "September 20, 1914," and several close acquaintances of her family testified that she was fourteen years of age at the time of the alleged offense.
The prosecutrix was corroborated, in some particulars, by Mrs. Watt, Bernice Watt, Dr. Walker and H.W. Scott. Mrs. Watt and Bernice said the prosecutrix went with them to the Nazarene Church on the night in question, and, on their way home, the defendant called the prosecutrix across the street, "talked to her a minute," then she and the defendant walked "towards" the truck, which they saw going down the street shortly thereafter. Mrs. Watt also said the prosecutrix did not come home until after midnight. Dr. Walker said, "the day after the assault," the prosecutrix complained to him "that a rape had been committed," and requested "an examination of her sexual organ;" that he called Dr. E.C. Shelton, and they "made an examination together." Both said they found a normal vagina and no hymen; that the vagina had been entered, but they found no tears, lacerations, soreness, nor indications of a recently ruptured hymen; and that they were unable to say whether or not her sexual organ had been entered by the sexual organ of a man. "Squire" Scott said she complained to him about the alleged offense, and signed and swore to the complaint filed before him, on March 22, 1929.
The defendant, testifying in his own behalf, said: He was eighteen years of age, and lived on his father's farm, about one mile north of Eldon. He worked on the farm. He had known the prosecutrix two or three months, but was not with her during the evening or night of March 21, 1929. He had never had "a date" with her, and had never, at any time, had sexual intercourse with her. John Irwin is his cousin. Irwin lived in Jefferson City, where he drove a truck for the Capital Fruit Company. Irwin was with him on the evening in question, and stayed at his home that night. In the early part of the evening, he rode to the Nazarene Church in Eldon with Irwin in Irwin's truck, and Irwin parked the truck near the church building. He left Irwin outside of the church building when the services were "just about over" and did not see Irwin again until he went home, after midnight. He went to the picture show building, about one block from the church building, where he met Charlottie Craig and her cousin, Lucille Slavens. He had been "keeping company" with Charlottie Craig. He accompanied Miss Craig and Miss Slavens to Miss Craig's home in Eldon. They reached Miss Craig's home about 9:30 and he did not leave until twelve o'clock. He reached his home about 12:20, and found Irwin there "asleep."
In his defense of alibi, he was supported by Charlottie Craig, Lucille Slavens, Mrs. Walter Craig, mother of Charlottie Craig, and three other witnesses. Charlottie and Lucille said the defendant met them at the picture show building about nine o'clock, accompanied them to Charlottie's home, and stayed there until about twelve o'clock. Mrs. Craig said the defendant came to her home with Charlottie and Lucille between nine and 9:30 and did not leave until "sometime after 11:30." Another witness said the defendant left the church building alone and started immediately in the direction of the picture show building. Two other witnesses said they saw the defendant "walking along" the street with Charlottie and Lucille while they (the witnesses) were on their way home from the Nazarene Church.
The defendant offered in evidence the record of the employer of the prosecutrix, in which "Sep. 20, 1912" appears as the date of her birth; and one of the defendant's witnesses (Mrs. Minnie Justice) said she was a neighbor of the Monroe family at the time the prosecutrix was born, and that the prosecutrix was sixteen years of age at the time of the alleged offense.
Three of the defendant's witnesses said the reputation of the prosecutrix for morality was bad, and one of the defendant's witnesses said her reputation for morality was good.
In rebuttal for the State, two residents of the town of Proctor, in Morgan County, where the prosecutrix was born and reared, testified that her reputation in that community for morality and chastity was good.
I. The challenge of the sufficiency of the evidence cannot be seriously considered. The competent testimony of the prosecutrix and her corroborating witnesses is amply sufficient to support the verdict. Convictions based upon proof of the same Sufficient character have been upheld by this court in numerous Evidence. cases. [See State v. English, 11 S.W.2d l.c. 1022, and cases cited.]
II. The complaint concerning the admission of certain testimony of the prosecutrix is well taken.
After the prosecutrix had testified that she and Pearl Watt left Eldon together, and that she (the prosecutrix) was not in Eldon "on the first day set" for the Conversations: In defendant's preliminary hearing, she was Defendant's absence. permitted to further testify, over the objection of the defendant, as follows:
"MR. FENDORF (prosecuting attorney): Did you receive any money before you left Eldon? A. Yes, sir.
"Q. Did you know beforehand that you were going to receive that money? A. Not for sure.
"Q. Did you expect to receive some money? A. Yes.
"Q. When did you first know that you were going to get some money? A. When I went to the factory, Pearl Watt called me —
"MR. REED (defendant's counsel, interrupting): Was the defendant there? A. No.
"MR. FENDORF: You say you had a conversation with Pearl Watt at the factory? A. Yes.
"Q. What did she say? A. She said somebody told her I would get some money they was sending —"
Then, after testifying that the defendant came to the home of Mrs. Watt and talked to Pearl Watt twice on the day she and Pearl left Eldon, the prosecutrix was permitted to further testify, over the objection of the defendant, as follows:
"MR. FENDORF: What did you do then — after Sam Stevens (the defendant) left the second time? A. Pearl and I started to town and up there at the Rock Island depot we saw Sammy's (the defendant's) lawyer across the street.
"Q. Did you talk to him? A. Yes.
"MR. REED: Was Sam Stevens present? A. No.
"MR. FENDORF: Then what was said at that time? A. Pearl said she was going to Chicago and if he would give her enough money to get up there and pay my way up there we would go, and Mr. Atwell said if they would fix it up and give us the money to go we would have to stay gone.
"Q. Was there anything else said at that time? A. Yes.
"Q. What was that? A. Mr. Atwell said for us to meet him some place and him and Sammy (defendant) would be there — I forget just where he said to meet them. Before time to go, Walt. Craig come over to Cooper's with the money.
"Q. And you were at Cooper's before Walter Craig came with the money? A. Yes.
"Q. Just tell the jury what Walter Craig said and did? A. Well, he said he had something for me, receive it or not, and I said I would receive it.
"Q. Did you receive it? A. Yes.
"Q. What was it? A. Some money.
"Q. When you were talking with Mr. Atwell state whether or not anything was said about somebody coming to see you in case you didn't keep the appointment. A. I don't remember it.
"Q. Anything said about if you didn't come to the place there some responsible man — A. (Interrupting) Yes, he said if he didn't come he would send some responsible person with the money.
"Q. You say you received the money from Walter Craig? A. Yes.
"Q. What was that in? A. A Skelly envelope.
"Q. What was in it? A. Sixteen dollars and something.
"Q. Well, I'll ask whether or not the amount corresponded with the fare to Chicago. A. Yes."
The prosecutrix admits that the defendant was not present when she talked to Pearl Watt at the factory, nor when she and Pearl talked to Mr. Atwell near the Rock Island depot, nor when she talked to Walter Craig at Cooper's. She says the defendant talked to Pearl on the same day, and shortly before she and Pearl talked to Mr. Atwell, but Pearl did not testify, and the proof fails to show what the defendant said to her on that occasion. And, while Mr. Atwell appeared as one of the defendant's attorneys at the trial of this case, it was not shown that he had been so employed at the time the prosecutrix says she and Pearl talked to him about leaving Eldon. There is no direct evidence, nor any evidence from which it may be reasonably inferred, that the defendant authorized either Pearl Watt or Mr. Atwell or Walter Craig to speak or act for him in connection with the money transaction referred to by the prosecutrix, nor that this alleged money transaction and these alleged conversations were had with the defendant's knowledge and consent. Under such circumstances, the testimony of the prosecutrix relating to these matters was clearly inadmissible and, in view of the sharp conflict in the evidence on the issue of the defendant's guilt or innocence of the offense charged, it was highly prejudicial. Therefore, we must hold that the admission of this testimony, over the objection of the defendant, constitutes reversible error. [State v. Patrick, 107 Mo. 147, 17 S.W. 666; State v. Bowen, 247 Mo. 584, 153 S.W. 1033.]
III. It will suffice to say that no error was committed by the trial court in excluding the defendant's proof Specific Acts of of specific acts of immorality of the Immorality. prosecutrix, nor in refusing to modify the State's Instruction 2, as requested by the defendant.
IV. The other complaints in the motion for a new trial relating to given and refused instructions are general in character and do not specify wherein any error was committed in the General giving and refusal of instructions. These complaints Complaint. present nothing for our review. [Sec. 4079, Laws 1925, p. 198; State v. Standifer, 316 Mo. 49, 289 S.W. 856.]
V. The motion in arrest of judgment will be disregarded. Motions in arrest of judgment in criminal cases were Motion in abolished in 1925 and now have no place in our Arrest. criminal procedure. [Sec. 4080, Laws 1925, p. 198.]
VI. We have examined the information, as a part of the record proper, and find that it is sufficient in form and substance. [Sec. 3247, Laws 1921, p. 284a; State v. Cason (Mo. Information. Sup.), 252 S.W. 688, and cases cited.]
Because of the error of the trial court in admitting incompetent and prejudicial testimony of the prosecutrix over the objection of the defendant, the judgment is reversed and the cause remanded. Davis and Cooley, CC., concur.
The foregoing opinion by HENWOOD, C., is adopted as the opinion of the court. All of the judges concur.