272 Mo. 491 | Mo. | 1917
Defendant appeals from a conviction of statutory rape. The offense was alleged to have been committed upon one Eva Frampton, a girl under the age of fifteen years, during a “joy ride” in defendant’s automobile.
The defendant challenges the evidence as being insufficient to warrant a verdict of guilty.
Two other persons, Robert L. Moore, a man 33 years of age, and Clara Parker, a girl apparently older than the prosecutrix, were also in the automobile during the ride. Neither Clara Parker nor Moore testified, in the ca«e, although it appears from the record that Clara was in the court room at the time, and Moore was under arrest for the same offense against Eva Frampton as that with which defendant was charged. The girl and the defendant were,the only witnesses who presented direct testimony as to what occurred.
Some important facts are undisputed. Eva Frampton’s mother, who had separated from, her husband when Eva was an infant, had recently moved from Wellsville, Kansas, to Kansas City. Eva had been an inmate of the House of the Good Shepherd and, only a short time before the joy ride, had come to live with her mother at the latter’s home in Kansas City. While at the House of the Good Shepherd she had made the acquaintance of Clara Parker. After coming to her mother in Kansas City, some time in May, 1915, while on an errand for her mother, Eva met Clara on the street and was invited by the latter to take an automobile ride that afternoon. Later the two met by appointment at Fourteenth Street and Broadway, and after waiting a few minutes the defendant, Bowman, and Moore came along in Bowman’s “Hudson Six.” The two girls got in the rear seat, the two men sitting in front, and the joy ride began at about 3:30 in the afternoon.
They drove a few blocks when the four got out and entered a side room or hall adjacent a saloon, where they took several rounds of whiskey. They then proceeded to another place, the precise nature of which does not appear, where they again went in and took drinks. They stopped at several saloons where drinks of whiskey, beer and cocktail were brought out to them by Moore. Besides, they took along bottles of whiskey and prepared cocktails of which they partook as they rode They finally turned the automobile toward Independence, all of them being more or less drunk. The two men had been drinking before they met the girls. After the visit to the first saloon Clara Parker got in the front seat with defendant, and Moore sa,t behind with the Frampton girl. The party arrived at Independence before dark and stopped at the home of Mrs.' Yetter, Moore’s mother, where they all went in and remained for a few minutes. When they continued their ride Mrs. Tetter and her husband accompanied them in the car. They had not been driving long until the car got stuck in the mud. Mrs. Tetter and her husband then left the automobile, intercepted a passing buggy and left for home in it. The four joy-riders remained in the car and, after repeated efforts to extricate it from the mud, it was finally dislodged and started on the return journey to Nansas City, where it arrived at three o ’clock in the morning. It had been in the mud several hours. After the car had been in the mud for some time Clara Parker left it, probably going to a street car. Eva was left alone with the two men; During the ride and particularly after the car was stalled, “improper familiarities,” as defendant’s counsel expresses it, were indulged in by the joy-riders, but defendant claims the crime charged was not committed by him.
In the facts as above stated, as well as in many unimportant details of the ride, the defendant and the prosecutrix are in substantial agreement.
There was a sharp conflict in the evidence as to the girl’s age. Eva asserted that she was forcibly ravished by both men, by Moore while on the way to Independence, and again after the car became stalled, and by Bowman after Clara Parker left the automobile. The defendant stoutly denied that he committed the act or even attempted any familiarities with the prosecutrix. He said he attempted the act with Clara Parker, but was too drunk to accomplish his purpose. Certain it was, according to the testimony of Eva, as well as of himself, that he was drunk, sick and vomiting a good deal of the time. Defendant also said the reason he took Eva to the hotel was because she was afraid to go home and refused to go.
It was the English rule, and it has been said in some jurisdictions of- this country to be the general rule, that account books kept by third persons and not intended to be accounts of transactions between the parties litigant, are res inter alios a ota and not admissible in evidence. However, that rule has not been adhered to in many of the States, including this State. Many cases can be cited where books of third persons, not parties to nor interested in the litigation, are admissible in evidence. Such, for instance, as the books of a bank to show the state of a litigant’s account at a certain time. [Jordan v. Osgood, 109 Mass. 457; Culver, Admr., v. Marks, 122 Ind. 554, l. c. 563; Anderson v. Edwards, 123 Mass. 273.] Unofficial entries made by a surveyor are admissible in evidence, independent of any statute. [Le Bourgeoise v. Blank, 8 Mo. App. l. c. 441; Williamson v. Fischer, 50 Mo. 198.] The record of a telegraph company showing a telegram sent, has been held admissible in an action between third persons. [St. L. S. W. Ry. Co. v. Sewing Machine Co., 78 Ark. 1; 8 Am. & Eng. Ann. C. 208; Manchester Assurance Co. v. Oregon R. R. & Navigation Co., 69 L. R. A. 475, l. c. 478.] Other entries of third persons and books kept by such third persons, when relevant to the issues between parties litigant, have been held admissible in various civil as well as in criminal cases. [State v. Brady, 36 L. R. A. (Iowa) 693, l. c. 696; Williams v. Geaves, 34 Eng. C. L. 541; C. & N. W. Ry. Co. v. Ingersoll, 65 Ill. 399.]
The entry made by a physician upon his book showing the date of his attendance upon a patient and the complaint of which the patient was suffering, has been held admissible between third parties, in criminal and in civil cases. [Arms v. Middleton, 23 Barb. 571, l. c. 574; Morrow v. State, 120 S. W. (Tex.) 491.] The question came before this court in ease of Knapp v. Trust Co., 199 Mo.
In the present action Dr. Janes not only identified his book and the entries made at the time of the occurrence, but stated that he had an independent recollection of the matter and knew the prosecuting witness. No entry was made showing payment of his bill, such as was shown in the Knapp case. We can see no reason Avhy an entry of payment should make any difference as to the admissibility of the other entry showing the date of the visit and its purpose, the physician who made it having no interest Avhatever in the matter under investigation. Under . the authorities cited we think that not only the physician himself was properly permitted to testify, after refreshing his memory from the book, but that his book was competent evidence for the purpose for which it was offered — to sIi'oav the date of the birth of Eva Frampton.
In direct examination the defendant testified only to what occurred during the progress of the automobile ride on the night on which the crime is said to have been committed, so that this cross-examination was entirely outside the scope of the examination in chief, and reversible error under numerous authorities construing section 5242, Revised Statutes 1909. [State v. Swearengin, 269 Mo. 177, l. c. 185; State v. Burgess, 259 Mo. 383, l. c. 397; State v. Pfeifer, 267 (Mo. 23, l. c. 30; State v. Goodwin, 271 Mo. 73, l. c. 81; State v. Smith, 250 Mo. 274.]
The foregoing opinion of White, C., is adopted as the opinion of the court.