Opinion
No. 40166.
February 10, 1947.
1. CRIMINAL LAW: Rape: Statutory Rape: Evidence Sufficient. Although the prosecutrix had at one time changed her story, there was other evidence tending to corroborate her testimony. There was sufficient evidence to support a conviction of statutory rape.
2. CRIMINAL LAW: Appeal and Error: Assignments Not Made in Motion for New Trial. Assignments not made in defendant's motion for new trial are not properly raised on appeal.
3. CRIMINAL LAW: Appeal and Error: Assignments Insufficient. Assignments not preserved with detail and particularity in defendant's motion for new trial are not properly raised on appeal.
4. CRIMINAL LAW: Juries: Trial: Amendment of Verdict Proper. When the jury returned with an improper form of verdict the trial court properly directed the jury to retire and return a verdict in proper form.
Appeal from Oregon Circuit Court. — Hon. Gordon Dorris, Judge.
AFFIRMED.
J.L. Bess for appellant.
(1) The court should not have permitted the prosecuting attorney in his opening statement to the jury to tell it that appellant had sexual relations with prosecutrix at times before and after that charged and for which he was being tried. State v. Brown, 247 Mo. 715, 153 S.W. 1027; State v. Davis, 190 S.W. 297, 52 C.J. 1196-97; State v. Schenk, 238 Mo. 429, 142 S.W. 263; State v. Miller, 263 Mo. 326, 172 S.W. 385; State v. Caldwell, 311 Mo. 534, 278 S.W. 700. (2) The state should not have been permitted to introduce incompetent and irrelevant matters in evidence, prejudicial to the rights of appellant. State v. Teeter, 239 Mo. 475, 144 S.W. l.c. 448; Constitution of Missouri, Sec. 18 (a) Art. 1; State v. Phillips, 233 Mo. 229, 135 S.W. 4. (3) "It is the duty of the prosecuting attorney to be fair and impartial in presenting the evidence for the prosecution". 16 C.J. 891, sec. 2228; 16 C.J. 886, sec. 2221; State v. Horton, 247 Mo. l.c. 666, 153 S.W. 1054; State v. Donell, 18 S.W.2d 53; State v. Kyle, 259 Mo. 401, 168 S.W. 681. (4) To persist in asking leading and suggestive questions is highly prejudicial to rights of a defendant. Jones on Evidence (3 Ed.) 816; Offerman v. Union Depot, 125 Mo. 408; Abdo v. Townsend, 282 F. 476; State v. Stevens, 29 S.W.2d 113, 325 Mo. 434. (5) It was error for the prosecutor to ask defendant questions about matters not brought out in his direct examination. Sec. 4081, R.S. 1939; State v. Statts, 296 Mo. 43, 246 S.W. 953. (6) Dr. Forrest was permitted to go beyond the bounds of reason in relating inadmissible claimed conversations, including that with prosecutrix in absence of defendant, over the objections and exceptions of appellant. They were calculated and could answer no other purpose but prejudice jury against appellant. Exenia Bank v. Stewart, 114 U.S. 224; State v. Baker, 249 S.W. 75; State v. Marding, 268 S.W. 48. (7) The court erred in overruling demurrer to evidence at close of the testimony. Because the prosecutrix had repudiated the charges and of her own volition made a sworn statement wholly contradicting her uncorroborated testimony as to corpus delicti. State v. Guye, 299 Mo. 348, 252 S.W. l.c. 960; State v. Brown, 209 Mo. 415, 107 S.W. 1068; State v. Smith, 259 S.W. 506; State v. Goodale, 210 Mo. 288, 109 S.W. 9; State v. Tevis, 234 Mo. 276, 136 S.W. l.c. 341; State v. McCracken, 162 S.W.2d 853. (8) Corroboration of prosecutrix's testimony was indispensible to a conviction. Steele v. K.C. Southern Ry. Co., 265 Mo. 97, 175 S.W. 177; Stigers v. St. Joseph, 258 Mo. 172, 166 S.W.2d l.c. 527; Stephens v. Thompson, 175 S.W.2d 166; State v. Ball, 133 S.W.2d 414; State v. Burton, 196 S.W.2d 621. (9) It was error to permit the state to recall witness Clarence Bradley, to repeat what he had said in his examination in chief. Diehl v. A.P. Green, 299 Mo. 641, 253 S.W. l.c. 990; State v. Creed, 299 Mo. 307, 252 S.W. 678; State v. Haid, 333 Mo. 1224, 64 S.W.2d 667. (10) It is the duty of the court to instruct the jury on all the laws of the case and the court erred in failing to do so, in this, to-wit: On circumstantial evidence and particularly on conflicting statements of prosecutrix. State v. Neinaber, 148 S.W.2d 537; State v. Thomas, 351 Mo. 804, 174 S.W.2d 337. (11) Failure to instruct on contradictory statements and require corroboration of testimony of prosecutrix. State v. Brown, 270 S.W. 275; State v. Citus, 331 Mo. 605, 56 S.W.2d l.c. 76; Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d l.c. 647; Goslin v. Kurn, 173 S.W.2d 79. (12) Failure to instruct on good character of defendant. Sec. 4070, R.S. 1939; State v. Anslinger, 171 Mo. l.c. 607, 71 S.W. 1041; State v. Havens, 177 S.W.2d 625; State v. Fowler, 189 S.W.2d 549. (13) The court erred in refusing a jury verdict over defendants objections, returned into court which assessed a two year term in the penitentiary and recommended clemency. State v. Demmick, 331 Mo. 240, 53 S.W.2d l.c. 265; State v. Bevins, 328 Mo. 1046, 43 S.W.2d 437. (14) It was error for the court to give oral instructions to the jury over the objections of defendant, and requiring it to return to jury room and change its verdict. Sec. 4070, R.S. 1939; Kimberlin v. Roberts, 341 Mo. 267, 107 S.W.2d 24; Hatten v. Gardner, 235 Mo. App. 1198, 150 S.W.2d l.c. 1102. (15) The verdict was against the law and against the greater weight of all the evidence. It was without sufficient substantial evidence to support it. State v. Welton, 225 S.W. 965; State v. Prendible, 165 Mo. 353, 65 S.W. 566; State v. Huff, 161 Mo. l.c. 487, 61 S.W. 908; State v. Gregory, 339 Mo. 113, 96 S.W.2d 47. (16) The judgment not being founded on the original verdict of the jury which the court refused was an error which rendered the judgment void. U.S. Trinket Packing Co. v. United States, 236 F. 109; Webster v. Knight, 46 Mo. 83; State v. Iva, 192 S.W. 737; 16 C.J. 1101, sec. 2585; State v. Martin, 230 Mo. 680, 132 S.W. 595, 599; 27 R.C.L. 859; 17 C.J. 355, sec. 3719; State v. Stumpter, 335 Mo. 620, 73 S.W.2d 760; Hatton v. Carder, 235 Mo. App. 1198, 150 S.W.2d l.c. 1102. J.E. Taylor, Attorney General, Aubrey R. Hammett, Jr., and Harry H. Kay, Assistant Attorneys General, for respondent.
(1) Assignments Nos. 1, 2 and 10 in defendant's motion for a new trial are too general to present any issue to this court for review. Sec. 4125, R.S. 1939; State v. Simon, 317 Mo. 336, 295 S.W. 1076; State v. Marlin, 177 S.W.2d 485. (2) The defendant waived any error of the court in overruling defendant's demurrer offered at the close of the state's case by failing to stand on said demurrer and by offering evidence in his own behalf. State v. Robinson, 106 S.W.2d 425; State v. Meadows, 330 Mo. 1020, 51 S.W.2d 1033. (3) The court did not err in overruling defendant's demurrer offered at the close of the whole case and in submitting the case to the jury. State v. Ring, 346 Mo. 290, 141 S.W.2d 57; State v. Moore, 339 Mo. 52, 95 S.W.2d 1167; State v. Burton, 196 S.W.2d 621; State v. Mundy, 76 S.W.2d 1088; State v. Donnington, 246 Mo. 343, 151 S.W. 975; Adelsberger v. Sheehy, 332 Mo. 945, 59 S.W.2d 644; State v. Ball, 143 S.W.2d 414. (4) No error was committed by the court in not instructing on circumstantial evidence and conflicting statements of prosecutrix. State v. Foster, 197 S.W.2d 313; State v. Mansker, 339 Mo. 913, 98 S.W.2d 666; State v. Neal, 350 Mo. 1002, 169 S.W.2d 686; State v. Hadlock, 316 Mo. 1, 289 S.W. 945. (5) The court committed no error in directing the jury to retire to the jury room and bring in a verdict in proper form. State v. Miles, 199 Mo. 530, 98 S.W. 25; State v. Sartino, 216 Mo. 408, 115 S.W. 1015; Buttron v. Bridell, 228 Mo. 662, 129 S.W. 12; Cattell v. Dispatch Pub. Co., 88 Mo. 356.
In the circuit court of Oregon County, Missouri, appellant was convicted of the crime of statutory rape and his punishment assessed at two years' imprisonment in the state penitentiary. From this sentence he has duly appealed.
Appellant contends that his motion for a directed verdict should have been sustained because of the contradictory statements of prosecutrix under oath and because her evidence was not corroborated.
The evidence shows that on June 2, 1945, prosecutrix was fifteen years of age. On that date appellant picked her up at her sister's home, drove her out on the Couch road located in Oregon County, and while there had intercourse with her. Prosecutrix testified that this was not the first time she had had intercourse with appellant but that she had never had intercourse with anyone else. Appellant denied that he had ever had intercourse with prosecutrix.
On cross-examination prosecutrix admitted that on January 18, 1946, at the office of the attorney for appellant in West Plains she made an affidavit to the effect that she did not have intercourse with appellant on June 2, 1945, nor at any other time. This affidavit was prepared by the attorney for appellant. On redirect examination she testified that on January 18, 1946, appellant picked her up at her sister's home and drove her to West Plains, that he coached her as to what to say to his attorney, and that this was why she told appellant's attorney that she had never had intercourse with appellant. She further testified that appellant was with her at his attorney's office and then drove her back to her sister's home. On further cross-examination she testified that the affidavit was false, that the truth was that appellant did have intercourse with her on the night of June 2, 1945, and also on dates previous to that date.
Dr. G.B. Forrest testified that on June 2, 1945, he was practicing medicine at Alton, Missouri. He testified that on several occasions appellant had told him of "his girl" and that "they would go out on the river to a club house." Two or three days prior to June 2, 1945, prosecutrix came to his office complaining of her breast. He examined her and told her she had probably taken cold. Upon leaving his office he saw her go into the store where appellant worked. Shortly thereafter appellant asked him what was the matter with prosecutrix's breast and he told him he did not know. After chuckling, appellant said to the witness, "She may be breeding." The witness told appellant that he thought he was "looking at the penitentiary door," and appellant asked the witness not to talk too much. The witness then inquired of appellant if prosecutrix was the girl he had been talking about and was told she was the girl.
Joe Black testified that he had told appellant to let prosecutrix alone, that he had seen them together in a car.
[398] The father of prosecutrix testified that appellant called for his daughter in April of 1945 and that he invited him in the house. Appellant told him that he would wait for her in the car, whereupon the father told appellant that prosecutrix was only fifteen years of age and he "did not allow him or any other man fooling with her."
"A number of cases have held that in statutory rape particularly a prima facie case can be made on the uncorroborated testimony of the prosecutrix. State v. Thomas, 351 Mo. 804, 174 S.W.2d 337. And in rape cases generally the rule is that corroboration is not essential to prove the act of sexual intercourse unless the testimony of the prosecutrix is contradictory and in conflict with physical facts, surrounding circumstances, and common experience so as to be so unconvincing and improbable that it is extremely doubtful. State v. King, 342 Mo. 975, 119 S.W.2d 277; State v. Roddy, Mo. Sup., 171 S.W.2d 713; State v. Burton, Mo. Sup., 196 S.W.2d 621." State v. Burton, 355 Mo. 467, 198 S.W.2d 19, l.c. 20.
We think that the testimony of witnesses Dr. G.B. Forrest, Joe Black and prosecutrix's father tends to corroborate prosecutrix's testimony that appellant did have intercourse with her. Since there was evidence tending to corroborate prosecutrix, we hold that it is sufficiently substantial to support the verdict. State v. Mundy, 76 S.W.2d 1088.
Appellant assigns as error the overruling of his objection to the prosecuting attorney's opening statement to the jury, the failure of the court to instruct on circumstantial evidence, the failure to instruct in regard to contradictory statements of prosecutrix, and the failure to instruct on previous good reputation of appellant. These assignments are not properly before us for the reason that none of them are mentioned in appellant's motion for a new trial.
Appellant assigns as error the trial court's action in permitting the prosecuting attorney to introduce incompetent and irrelevant testimony over his objections. He also asserts that the verdict is against the law and the evidence. These assignments are not properly before us because they were not preserved with detail and particularity in his motion for a new trial. State v. Marlin, 177 S.W.2d 485; Section 4125, R.S. Mo. 1939.
At first the jury returned the following verdict: "We, the jury find the defendant, T.L. Wood, guilty of rape, as charged in the information, and we do assess his punishment at 2 years with clemency." The trial court informed the jury that their verdict meant two years in the state penitentiary and instructed them to retire to the jury room and return a verdict in proper form, that no instruction had been given that would permit the words, "with clemency." The jury retired to the jury room and later returned the following verdict: "We, the jury find the defendant, T.L. Wood, guilty of rape, as charged in the information, and we do assess his punishment at 2 years in the State Penitentiary."
The action of the trial court in this regard was entirely proper. The court not only may but should see that verdicts are in proper form. Certainly in this case there is absolutely no doubt that the verdict as amended was in effect the same as that first returned into court except that it was in proper form. State v. Sartino, 216 Mo. 408, 115 S.W. 1015:
It follows that the judgment of the trial court should be affirmed. It is so ordered. All concur.