*1 389 аp- does not election right hold the to valuó The thorized. unable to understand are and we or evidence pear pleadings in the right to hold upon the put monetary could well be value how for loss district damages the school or how the an such election injunction had election, in the event hold the right of the be determined. could well granted, been from the appellants monetary or value only possible benefit
The pleadings, from would granting injunction, determinable against property, if the au- their saving taxes assessed be the Ap- prevented. said bonds could be and issuance of thorization mone- attempt any facts from which such plead no pellants make imposed upon additional tary The taxes could be calculated. value injunсtion be petition, mentioned plaintiffs the five injunction by taxes, them in if the denied, or amount to be saved manifestly relatively insignificant. granted, be been would Supreme only appellate jurisdiction has Court has such The by specifically upon conferred it the Missouri been Constitution. [Art. 1884 12, and Sec. 5 of the Amendment Art. In VI, sec. all VI.] cases, specified 12, jurisdic- VI, other than those section Article appeals tion of from the circuit courts of the State resides appeals. rel. Rucker courts of ex v. 313 Mo. several Hoffman, [State 288 667, S. W. 16.] showing amount particular
The facts that the involved ease jurisdiction brings appellate appear it within our must from the pleadings, judgment evidence contained the record and can- by record; example, be shown matters outside of such af- Hydro Co., fidavits or otherwise. v. McComas Electric [Cambest supra; supra.] State ex rel. v. Reynolds, nothing in
There is the record in this case from which it can be in dispute” determined that the “amount exceeds $7500, present monetary jurisdiction maximum of our appeals. courts of [Sec. 2418, R. S. This appellate jurisdic- court therefore has no 1919.] tion of this case and it shoidd be City transferred to the Kansas Appeals. Court of
Let accordingly. J., an order Walker, White, G. Raglancl, At- wood Gantt, JJ., concur. Overton H. Appellant. (2d) 20.
The State S. W. v. Jr., 8 Two, 21,
Division June 1928. *2 appellant. Emgh, Babbs for Norman A. Cox Tadloclc, T. C. *4 respondent. Prosecutor, for Birkhead, Special Frank B.
394 of an filed in Circuit Court HENWOOD, By information C. Wilkins and one Jasper County, (appellant), ED. Jr. Overton A charged rape. crime of severance Taylor with the jointly were Gentry and separate was conviсted granted, and, upon trial, was a ninety-nine years, penitentiary imprisonment sentenced to re- jury. case is here for with verdict of the The in accordance appeal. view his on substance, that, at the Goen, testified, in prosecutrix, weighed eighteen years age,
time in was of between question, she 100 servant in the pounds, employed and was as a domestic city Joplin. of Mrs. About 5:30 home Walter Jackson of Wednesday afternoon, January 5, on 1927, she went to Jamison’s Drug get powder. way stamps On back Store some and face her up the Jackson Thelma her and asked home, Gishner came behind (Thelma Gishner) her to take a ride friends. She with two gone Thelma with her before, met on street and had to a show hesitation, consented, once or twice. аnd Thelma After some she along took her back a the street and introduced distance, short to Gentry sitting seat of Taylor, who a Buick the front Sedan, parked Pharmacy. no front of the West She had Side previous acquaintance Taylor Gentry never seen they either them minutes, before. After talked a Thelma few left, saying change she to her room and her dress would friend’s back for Gentry get come the ride. her to asked and, car, Gentry got by declined, out, when arm she took and shoved her toward the and she sat down the front seat. car, Gentry then the front seat and closed the door the car. to.get away help. Presently, She made no effort not call and did driving, who car, they started the take a said would ride and come back for request, Thelma. At her would drive home, the Jackson and she could tell Mrs. Jackson that she would not be home for awhile. When failed to make the proper turn ingo the direction Jackson home told them she get out, put her, arm Gentry around pulled her down in car, and held his hand over her mouth. She tried out, outcry. but made no She did not scream before Gentry put his over hand her mouth, because “wasn’t afraid him.” In this “Well, connection she said: I I resisted as much as could, but I much; couldn’t I do such car position in the that I very couldn’t much, do I resisted to my “ability.” the best of After quite -drove Joplin, Taylor north of stopped distance the car and held her, with one arm around her and his hand over her mouth, while gate. They through 'unlocked drove gate, off public road, to a house that looked like a shed. Gentry unlocked house, lamp. in, lighted went re- She
395 out Taylor to take her tried when house, and, in the fused Taylor took times. or three two car, and screamed she resisted She arm and shoulder. taking her hold of her into the house but strike escape. She tried unable to resisted, but him,^ through the liv- They took her anything “kicked than else.” more put her on room, they where a little ing and into room of house living room. They put off and them her clothes a bed. took inter- had sexual her, and Taylor, attacked Gentry, and then First, This will. against her her', by with force and violence course evening in the o’clock intervals, 6:30 or seven continued, at from morning. She re- dark) (after or o’clock until two three prevent but was unable to possibly could, much sisted as as she it.^ times, to fifteen Gentry with her from twelve She said had intercourse thеy put meant She said she from four to seven times. didn’t know privates many that she times, their into hers her they with “how far that After had intercourse act went.” Gentry into times, Taylor privates several his held her while forced lighted Taylor and, resisted, her her with when burned mouth, she cigarette hit She something her shoulder. her and bruised testifying. Gentry, a scar from a on exhibited burn chest while so her him, also, privates mouth, forced when she resisted into her he struck her on the a stick. did not head with some She kind know all that part on going during; but remembered time, covering damp. there was water on the bed and that the bed They laid bed, her Taylor Gentry across put held her while his mouth her privates. They left little her alone bedroom from two morning three o’clock until two or three o’clock following afternoon, they brought whеn her to her and clothes told they would meantime, take her back to town. In the she tried to out of the bedroom, but ivas unable to do so. She not know they whether living remained time, room all but she heard music in that room that sounded like a radio. She nothing to eat while in cig- the house and did not smoke arettes. She tried get away when carry first started to car, to the then “might concluded she as well She rode ride.” back to town between let her out front of Robertson’s Apartments. She did talk not to them about their treatment of her until she out of car. Then, told them she “was something have done about it,” said “it wouldn’t do any good because money.” had plenty of .She went to the Tatum home, (Mrs. where her Williams) sister Ruth worked, reported to her sister what had occurred. “I didn’t think anyone would my believе story my sister.” Later afternoon, she went to the Jackson home. Mrs. Jackson was not at home and did not return until night. late that Polly She told experience, and also Jackson’s) (colored
Waite servant morning “about next night and the told Mrs. Jackson that it. She all about asked her Mrs. Jackson thing,” but until whole days later, and, a days, few about ten at Jackson’s remained remained where she hospital, collapse to a and was sent nervous leaving the *7 After appendicitis. days, under for for ten observation county (Guy of of the sheriff hospital, lived in home she coat, hat, on a had Humes) trial. She shortly until before ” to the cabin. went princess shoes, when she “teddys, slip, hose ripato trial, at she referred When her dress was exhibited were caused which places, one she of the seams and other torn over head. She taking her by her dress off places” dress, and said 'not know what her caused two “burned nor heard had never seen she had never noticed them before. She Mrs. talked to night of Thelma on street. She Gishner since that John told Mrs. Wise she age; Wise about didn’t think she her she say twenty years “I I wouldn’t old, but said: am not certain. September, 1925, I that, in she didn’t tell her that.” She admitted home; one forged a her former City, two checks on bank in Pierce in her sister’s name, $165 $10 in her cousin’s other greater money name; spent part of the for clothes and that she ring. arrested, her a watch and a she was not because She said bank and father and brother at the settled endorsed her note matter, “quite good on the paid and that the bank deal” she wages. that, in St. Louis nоte out of her She also admitted while occasion, got work sick and fainted on the looking for on one she street, that, hospital, after her folks “tele- was taken to a graphed home, and was ac- ticket” to she returned to her her, companied AUender, as far Mrs. G. matron of the as Monett Mrs. Travelers Association in the St. Louis Union Station. She said Allender had business Monett. that, sister, Goen,
Mrs. Ruth her Williams said when came home, Thursday afternoon, to the Tatum about four o’clock on January 6th, crying, and she was nervous and had’bruises on her spots” head and shoulder Friday and “burned on her shoulder. On Coyne evening, telephoned Roy Mr. “to find out what could Coyne be done in such a case.” Mr. prosecuting She knew had been attorney. told Mr. report He her “to call James and it him,” prosecuting did -not Mr. attorney. tell her James was the assistant following day afternoon) (Saturday The she and her sister went (physician), and, reporting to the office of Dr. James after to him what happened, physical examination of he made her sister in presence. her
Dr. that, R. M. James testified when Bertha Goen told him her story Saturday upon afternoon, crying, and, she was nervous shoulder, burn on her head and bruises on found examination, he discharge from her abdomen, a in her lower chest, tenderness January 19th, badly swollen. On vulva lips of her and the vagina, symptoms of displaying hospital because she her to he sent discharge vulva and said the condition He appendicitis. anything by injury, cold, produced vagina have been could from her vagina, by excessive inter- walls of the irritate the that would hospital, Frank Weeks told at the day “One without force. course I and he would see that girl necessary attention give this tome $50.” handed visit the over money. there to my He out him told she was sixteen that Bertha Goen further said This witness age. years of called, January 19th, in consultation on who was Powers, Dr. H. C. except testimony condition, gave as to Bertha Goen’s similar which made examination. privates, no Polly Waite said that Bertha was nervous when returned to Thursday “reported that she afternoon, Jackson’s on this trouble” to her. Hundley working testified that she was Liberty
Louise *8 Confectionery Joplin in in and November, 1926, October and that occasionally during time; Thelma Gishner came there and she January, going in 1927, told her leave Joplin, to and she since; pointed not seen her and that Swisher, Thelma -out in the during trial, young court room was not the same lady she re- as Thelma ferred to Gishner. Southard, deputy
D. H. sheriff, said place ques- he went to the tion, “Taylor’s Cabin,” known as about a week after and Taylor were arrested. cabin The was about five miles north of Joplin, and a half public block and a off of road, and there was dwelling sight gate no house the cabin. The and cabin were living both locked. In couch, room he found a chair or two, a a dresser, a radio and a victrola, dressing-table, and a ladies on which powder, powder lipstick; were puffs some and a bed, and dresser room; and oil heater in the also, pork little a chop found or a two, part of a refrigerator. Every- cube butter and some bread in the thing in оrderly. the cabin was clean and The windows in bed- heavily room draped, open and he was them, unable to either from the outside inside. The “fastener” on the door between the living room and the bedroom wes a “wooden button about half an inch thick.” This button casing by w'as fastened to the door a screw. He observed automobile tracks gate cabin, between the and appeared which to have been made after the defendants were taken Thelma, jail. The,State’s subpoena for Gishner and non esk return thereon, made witness, this were read in evidence con- nection with testimony. his He said he. was find unable to her after directory city o£ was not in the diligent, search, that her name and
Joplin. twenty-four years behalf, said was testifying in his own he all his life. Joplin, hаd lived there
old, born in and he returned working months, about six but in Texas for had been Ife Taylor the "West Phar- Joplin January 1927. He met Side 1, Taylor January macy Wednesday afternoon, 5th, and he Taylor’s ear four o’clock until about six from around” “drove They Roy met Rice and Carl Rakestraw at the o’clockthat afternoon. any party Pharmacy, planned at that time. but not West Side temporarily Drug and went to the Fourth Street Rakestraw left (after away. six and seven o’clock Store, short distance Between Pharmacy and dark), out of West Side started toward as he came along coming the street from car, Bertha Goen “was the east.” her and seen before. “She smiled not know had never lie you and said: “How do spoke,” tipped hat, and he do?” acceptеd invitation, ride and she He invited her inquiring going, without or where. asked who were He name ready got got when he introduce her Rice. “She right readily set front They the ear down” seat. first Drug Fourth “picked up drove to Street Store and Rakestraw.” girl, Rakestraw said had “a date” with his drove to the Joplin part south girls, two Miss Smith Miss Dear- dorff. He did remember whether Miss Smith and Miss Deardorff were introduced to him or and he did not introduce Goen driving, to them. he was the front seat, lap, Bertha on his and Rakestraw and Rice Miss Smith and Miss Deardorff were in the back seat the car. .They went to house, another girl where Bertha could Taylor. He Bertha went door, to the were told the was not They there. then drove north “Taylor’s out of town to Cabin,” though nothing had been said about there. On the way, the *9 conversation in the back seat a show, was about but he listening to Bertha. She sat his lap, with her arms around neck, his kiss- ing calling him, endearing him names, making and love to him. He gate unlocked the and the him cabin, and Bertha followed into the cabin. Bertha was lighted his side when he the lamp in the living room, and in also bedroom, and, the when she saw the bed, she said: up hurry “Let’s and this bed.” thought He he closed the door bedroom, to the and he and Bertha started to undress. She undressed got first and into bed, got the and he into the bed with her when he undressing. finished He heard the other members of the party operating the radio and living victrola in the room, but did not know long how they were there. After awhile, Taylor called to him living from the room and said going he was to take the other ladies going them. (Gentry) Bertha with and lie asked home and go. want to noth- replied they didn’t He heard that Bertha He and party. He had sexual other members ing from the more during night, against the “not Bertha twice intercourse pur- in “absolutely” accomplishing no force will,” and used any Taylor and time, her at did not strike not strike pose. He Taylor presence. in returned to his the cabin the any time her at daylight,” came into the took a morning bedroom, “before next laid down in bed, foot of the and on the couch the quilt from the got and in living up He and Bertha dressed later morn- room. the Taylor and talked and, breakfast, when he Bertha about ing, and fix everything Tay- it “You have with.” Bertha said: He drove quarter of pound butter, pork “a car store and lor’s to a jar and a loaf of jell, eggs, some bread.” Bertha small chops, Taylor he and and and ate breakfast prepared breakfast, Bertha dishes, together. helped cleaned off table, Bertha “washed up making beds, cabin, in cleaned and up the ear cleaned and a walk under the trees fed out.” took crumbs of food to She cabin, near and he the fishes in the little stream took a walk also, “radioing straightening up and Taylor while They cabin.” afternoon, left the middle riding the cabin with Bertha Taylor front and him. seat between When pave- reached the said: ment, Bertha “Let’s ride around They awhile.” turned to right town drove into on the Elm Lone They Road. first stopped in front of Robertson Apartments, and then drove to the Pharmacy, West where Side sat booth awhile and drank nothing any said making “cokes.” Bertha about for him trouble ‘‘ say Taylor something and Taylor, but did getting about mar- Taylor night ried sister for back to the cabin.” He left Pharmacy at the West Side went his try father’s office. He did put privates mouth, Bertha’s try nor put his mouth on privates, thought “never thing.” such a cigarettes Bertha smoked “quite often” at the cabin night. He was never convicted crime before. Miss Velma Deardorff, Miss Smith, Ella Carl Rakestraw Roy Gentry’s Rice behalf, testified and corroborated his testimony in every particular, as to what occurred the car and at cabin, during the time were there. Miss Deardorff twenty years she was old, Royal lived at Heights, near Joplin, and telephone operator at the Interstate Grocery. evening On the of January 5th, Miss Smith “called her up” an engagement made for her to picture ato show with her and Mr. Rakestraw and M!r. All Rice. four of them rode back seat of the car, the other *10 front They seat. stopped get girl to a for Taylor, but did get sitting was front seat girl tlie like her to “It looked”
her. patting “She his neck. around arm had lap and Gentry’s daddy.” protested She him sweet called “she cheeks,” and his (Mr. but escort go home,” to “wanted conduct against this in the girl” went Gentry “this anything. say Rice) didn’t room,” she in the other “disappeared they and, when first, cabin home. to taken go home, and asked be to time was about it thought Gentry except town, back brought of them then, all “any cry help” for cabin, not hear she did at the girl.” While “the ’’ “ coming that room. from any kind a sound of or Joplin age twenty-one, she had lived said gave her Miss Smith She had Joplin Globe. employed life, and was all go picture to a show on the eve- Mr. Rakestraw to date” with “a request, arranged his (January 5th), and, at she ning question in- four Deardorff, with of them Mr. Miss Rice “a date” ear, in the together. After she “some tending to the show get girl Taylor,” they stopped Mr. remark to one made the in, car without went but came back to the at a and some one house Rakestraw) they (Mr. why her escort girl. When she asked get town, Mr. said he was stop didn’t “down say” girl girl would return.” She “couldn’t whether the Gentry’s lap, front seat was “her arm around Gentry” talking him. “Gentry When she saw and this disappeared cabin, ready the bedroom” at the “she was Referring to come back home.” to Miss Deardorff and herself, just said: “We didn’t want out be there.” She not hear ‘‘ ’’ any noise whatsoever in the other room. Both Miss Deardorff Miss Smith said they had never met Gentry girl” or or “the before, and were not introduced to night. them They did not identify Bertha Goen at the trial as girl who rode the front seat of the car, because it was dark they good did not at her. They said, however, look that the trip to the cabin was made on evening of January 5th, and that it only they time ever went to the cabin or ever rode ain car Taylor. They did not see the men any liquor drink liquor and saw no car or at the They cabin. further said that talked to Mr. Birkhead, the prosecuting attor- Mjr. ney, and his assistant, James, before talked to Mr. Andrews, Gentry’s attorney, and told the attorneys on both sides the same story they had told jury. to the Carl Rakestraw twenty-four said he was years old, had lived in
Joplin six seven months, and worked at the Fourth Drug Street Store. He knew this affair occurred on the evening of Wednesday, January 5th, because Wednesday was night off duty, and he had an engagement to take Miss Smith to picture show. He arranged
401 with her “a date” Deardorff and make call Miss Smith to Miss get girl” could a knew where she said she “Miss Goen for Rice. “wasn’t at house, girl’s but they went to and Taylor, ” lap lap. sat on his Gentry’s She sitting in Goen was Miss home. they When way cabin.” out to the him all and loved him kissed car and got out of the girl and this “Gentry cabin, reached sight. We they wasn’t room got we inside. When went girls thought they and these phonograph on one record played town,’ and us to they ‘Take rough said, party a a kind of was on and we took them Taylor on out they come door went. out the help girl,” “from outcry or call for He heard no to town.” testify “subpoenaed” to in this he was the cabin. After at while presence drug store, and in the Goen came to the сase, Bertha Williams) going money to make (Ruth was some said “she cashier forgotten.” mouth I be kept if I shut wouldn’t my this and out of trial, telephone him on the weeks called About two before going to when he told he was case, and, talked about the Taylor don’t.” said truth, she said: “Please He tell the whiskey drank before Miss Smith Deardorff and Rice some Muss that; and that not take a car, in the but not after he drink liquor any evening. He time that afternoon admitted that he party,” Grant “the told Ruth he was on but said he did not telL going get was to witness the case and he be a five hundred that, out of it. further admitted a boy dollars He while school Pittsburg, Kansas, he arrested and $14.75, -was fined because party up cut glass,” “raided broke some but he was never “convicted of other crime.”
Roy twenty-one years Rice sаid age, Joplin he was had lived in employed months, about seven and was as a clerk at the West Side Pharmacy. Gentry Taylor He knew and Bertha Goen a short evening they time before the to drove the cabin. Bertha came into night the store one him to telephone asked call a number for her, and said: “If a woman’s voice answers ’phone, hang up.” telephone It Harry number of Whitaker, married man, but no one answered Gentry the call. He saw talking' “in drug and, front store,” when he came out store, “she car; was in the seat with Gentry Taylor.” front Rake- arranged straw “the date” for him with Miss They Deardorff. tried but failed, then drove out to the cabin. sitting “Miss Goen was on Gentry’s lap, had her arms him and calling loving around him him names. calling She was daddy.” Gentry and Bertha went in the cabin first. “When we went in the cabin up started the radio and Gentry and the girl hadn’t been in more the cabin than four minutes, and when I n wentin they the room were this bedroom. The door was closed I room were I when went in the wont there and
when having inter- They sexual They clothes off. their bed. said, and Miss Miss Smith Deardorff minutes, In a course.” few out, turn wanted way thing this “if this go proceeded home.” “volunteered” home. We asked and Bertha were take them back to town. stay This “they no, they there.” would go, and wanted to ’ ‘ ’ ‘ evening, couple drinks that he had witness admitted *12 enough anything like that.” be intoxicated or “didn’t have to said he of Miss Smith, and mother Lennie father Stephen A. Smith and (Ella) engagement daughter had an Smith, that their Ella testified Ella evening January 5th, of and that Rakestraw on the with Carl (the parents) when re- at their home and Mr. Rakestraw were 10 :30 picture between and eleven o’clock that turned from a show night. Taylor, Wilkins
Mrs. Lulu mother of Wilkins came night January 5th, o’clock on the a few minutes after twelve of home o’clock next had bed,.” but, morning, at seven “he “and went know he gone,” she “didn’t what time left.” Marguerite druggist a Jackson, wife of Walter Jackson, Mrs. worked part testified that Bertha Goen in her home latter Joplin, part December, 1926, January, of and the first of 1927. Bertha away Wednesday night, January from her 5th, home and had Jackson) (Mrs. not returned when she left party home to a attend Thursday evening. When she returned home “about 12:30” Thurs- day night went to she Bertha’s room and “asked her where she had been and she said she had been in a Joplin.” locked cabin north of days Bertha continued to work for her about ten after happened, this at time tell her had raped.” “she been ravished or When newspaper report she read affair, of this after arrested, said: “Bertha, you?” is that Bertha said “that sure, she wasn’t if was, but that it her sister it; had had done taken action, and that her sister didn’t tell her going what she was to do complaint about it.” Bertha made no her, except that “she very a had bad Saturday, toothache.” On “after Thursday,” this Bertha called her attention to a wound on her head. “There awas ’’ my scab about finger nail, the size of I think as I remember it. On day Bertha get “asked if she could away down to see Doctor James.” Bertha did not tell her “she was locked ain cabin with anybody,” and she didn’t think much about it until she read about it newspapers. She denied that she urged Bertha not prosecute Taylor. Gеntry When Bertha told her that sister wanted to something do about it, she said: “Well, Bertha, if you is all (meaning are hurt injury on her head), why I you hate to see you do just it because will disgraced.” be (not "Williams the sister wile of Charlie Williams, Ruth Mrs. Drug at Fourth was cashier Street said she prosecutrix), She heard conversation Bertha Goen. knew that she Store, and drug store, Bertha Bertha Rakestraw between Carl money out of this and would his make some would said “she telephone that, After she answered a mouth shut.” kept his if he talk Carl Rakestraw. In lady asked to ring store and say: “I am Rakestraw followed, she heard conversation “got through” talking, he told Rakestraw When truth.” tell the Gentry-Taylor case.” “Betty Goen, her it was Elbert, hospital, May George and Miss nurses at Miss ap- was under observation acute Goen testified that Bertha day every days for ten and noticed no They pendicitis. bathed pubic body, small scratch except above marks or bruises on any injury, complaint no but told Elbert made Miss bone. She bruised. that her shoulder been pros- Roy said that term Coyne,
Mr. counsel County expired attorney Jasper 31, 1926. In ecuting December 1927, lady part January, the first who said her name was Ruth telephone thought called him on the and said Williams, “she James, prosecut- her to J. D. a criminal case.” He referred assistant *13 ing attorney, in Bank Joplin and told her his officewas the National Building; Birkhead, prosecuting also her that attorney, told Mr. the Carthage. lived in for
Counsel the the defense offered evidence information in the case of of v. H. Gentry, Jr., State Missouri Overton and Wilkins Taylor (No. Gentry charged in which 7051), and jointly sodomy. with of charges the crime That information that (Gentry Taylor) and against committed such with crime and one - day Goen “on or about 1927,” of January, Jasper County.
In rebuttal for the State, prosecutrix the said that she was not the car with and Rice Deardorff; Rakestraw and Miss Smith and Miss get she did not direct them where to Taylor; for and that she did not speak smile at or or nod to him as came he drug out of the store. said: “I She looked at him, but I did not smile I speak.” and did not She further said she did not cook breakfast, clean ear, out the feed the fishes, take a walk at cabin, the any request make stay cabin; at the Gentry that she and and Taylor came back from cabin the “on the Street road;” Main she did not drink cokes with them at the Pharmacy; West Side and that she did not tell and shе would her sister out on “a party” with them. She also denied each and all of the conversations with Rice and Rakestraw, concerning which Rice, Rakestraw and Mrs. Ruth (cashier) Williams testified. lived years old, had that she seventeen testified
Until Grant employed telephone operator life, Joplin all of lier months, about known Carl Bakestraw two Hotel. She the Connor off on.” He called her one with him “kept company and, drug store, to the telephone and asked her come day on the would make about five hundred dol- went, told her’ “he he when she night,” referring’ to testify them that he was-with lars he would (the sheriff) Guy first cabin. Mr. Humes was the party at the story. about person it, this Mr. Humes asked she didn’t she told why it. happened know or how mention Hr. commissioner of health of Mrs. Harutun, Joplin, M. B. Winter, probation Joplin, L. W. and law librarian assistant officer of reputation Gentry’s general community testified morality was bad. argue persuasion
I. Learned
with
improbability
counsel
much
story
prosecutrix
of
proof
thereof,
and the
in contradiction
consent, but,
on
usurp
the issue of
unless we are to
the function of
jury,
their contention as to
insufficiency
upheld.
evidence cannot be
Aside from the
bruises
cigarette burn,
prosecutrix says
which the
she received
being
forced to submit to
sodomy,
acts of
her testi-
mony
to show that she was
cabin, stripped
tends
taken to the
of her
by
against
clothing, and ravished
force
her will. She is cor-
places
roborated to some extent
the torn
dress,
her
her nervous-
private
ness
the swollen and irritated condition
parts
of her
days thereafter,
several
prompt
evidence
her
complaint
concerning
experience
persons.
to her sister and other
It must
be conceded that
own
some
testimony
admissions
unimpeached
several disinterested and
present
witnesses
a strong
challenge to
story,
the truth of her
as to the utmost
resistance
part against the sexual
in question; yet,
acts
peculiar
it is
prov-
jury
ince of
weigh
pass upon
the evidence and
credibility
witnesses,
will
we
interfere
their
where,
verdict,
*14
as in this case,
is
there
substantial
support
evidence to
it.
[State
v. Wade, 306
457,
52;
Mo.
268 S. W.
State v. Preslar
(Mo.), 300
S. W. 687; State v.
(Mo.),
Pinkard
morality was bad. It is well settled that, when a defendant testifies his own behalf, his credibility, p^-g 0f witness, other may any be attacked proof Hodges, of that character. v. 295 [State S. W. l. c. 787, and cases cited.]
405 improper evidence admission of complaints III. as to the Other his wit of the defendant improper and the cross-examination brief, are not appellant’s nesses are mentioned mo in his generally specifically, either included, are, complaints therefore, Such for a new trial. ^on Sec appeal. on this subjects [New for our consideration proper not 289 198; Murrell, v. S. W. p. State 4079, 1925, 859.] Laws tion trial, motion for a new assigned, in the Specific IV. errors 8 9. The 4, 7, 5, numbered giving of instructions as to the 54, against numbered complaints instructions made wep All of these be sustained. and must are taken full, as follows: quoted bewill instructions from evi- you and find believe that instructed are “4. You company defendant, Gentry, Jr., in H. Overton that the dence Missouri, County Jasper and State of of Ta/ylor, at the Wilkms one feloniously forcibly, day 1927, did January, 5th of about the on or Goen, an witness Bertha make prosecuting against will of the will, against forcibly, and feloniousty and her, and upon assault you defendant, carnally hei', will find the know then did ravish charged in information guilty rape of as Jr., H. Overton in the punishment imprisonment will his at death or assess years. you And if less than two penitentiary for a term of not state you acquit not so the defendant. find, do .will you guilty rape, of must you “5. Before can find the defendant defendant, H. that Overton and find from the evidence believe Gentry, Jr., forcibly with the and had sexual intercourse assaulted place preceding at the Goen time mentioned instruction, against will.
“You intercourse, cannot find that was such sexual unless there you penetrated believe from the evidence that the defendant private parts body private of of Bertha Goen with the said parts you to some extent. And cannot find that such intercourse was Goen, against forcible or will of said Bertha or without her consent, you unless find that made utmost resistance which capable prevent it; and whether or not such consent was given should be from all determined the facts and circumstances you which proved by consider the evidence.
“7. The jury charge upon court instructs sole which being the defendant is now rape, tried is which in other in- is defined structions, you guilty guilty upon must find the defendant or not charge alone; though you may even believe from the evidence guilty defendant immorality other act mthin the said charge rape you instructions, in these defined cannot return guilty verdict in this ease because of such acts. *15 though you the jury that even find the court instructs “8. The in rape other instructions charge of as defined guilty of the defendant determining fixing or purpose cannot, of you for the case, in this testimony to any therefor, into consideration punishment take the them, or Taylor, either defendant, or Wilkins that the the effect of Taylor, to Gentry, or of said organ the defendant caused the male that said prosecuting witness or in be the mouth of said inserted organ of said the sexual placed applied or his mouth to defendant be true. though may the same to you believe prosecuting witness, even upon acts testified jury “9. that the The court instructs the Goen, part witness, Bertha plaintiff by prosecuting the of the the they of them or either as Wilkins that to the defendant or Taylor inserted organ or said to be (cid:127)caused male of the defendant the placed in defendant prosecuting the mouth of witness or that said said organ applied prosecuting or the said his mouth the sexual sodomy, would, the knoivn true, constitute crime witness, if though you testimony true, acts do may even find such be rape.” not constitute
(Italics ours.) in foregoing all the instructions are determining jury that, the 4, effect, Instruction told the guilt acts of defendant, they or innocence of the considеr the could Taylor defendant, they defendant as the acts found that the alleged “in with- company rape, the with” at the time of out requiring other jury find, any instruction, this or acting question, defendant were, at the time design. concert purpose furtherance of a common [Sec. 3687, R. S. ivas not mentioned, For reason this instruction 1919.] only erroneous but prejudicial.
In 5, Instruction jury question the court told whether or not prosecutrix intercourse consented to have sexual with the defendant should be and cir- from all the facts determined cumstances which proven considered evidence. Inasmuch as the defendant admitted with the that he had intercourse sexual prosecutrix, the issue of her lack consent consent to such inter- course was the vital issue determining case. In this issue from the facts proven, circumstances which considered jury may have been so confused or misled toas have believed that they had roving commission in their evidence, consideration authorized limit their consideration to certain parts of the disregard evidence and to parts other of the evidence without consideration least, whatsoever. language At used in this instruction susceptible of that interpretation, and, there- fore, did not correctly inform jury duty premises. as to their This instruction given should have been in the usual approved form, by directing jury that the issue consent should be de-
407
m
all
facts and circumstances
of
from consideration
termined
679;
v.
Instruction may harmful beneficial to the defendant. tion, been more than have gave only singled undue by instruction, not out and court, The this legal prominence evidence, on the to certain facts in but commented by declaring if the facts, true, that such constituted thereof, effect sodomy. Thus, jury told, effect, they of be- that, crime the story guilty, lieved the of defendant was not prosecutrix, the the tried, only being which he but of rape, of the crime of for for on crime, another which was not trial. crime, detestable apparent It on en- is once such comment the evidence was unnecessary, though tirely form, that an in this even instruction improper highly prejudicial; intended as cautionary, was especially already instance, so in this the court had because cau- against 7 im- jury, 8, tioned the numbered instructions proper 9, to in consideration of the facts Instruction de- referred termining guilt rape the defendant’s or innocence of the crime and in fixing punishment crime, such for in the event found guilty. him 23, 28, 267 183 Pfeifer, v. Mo. S. W. [State 337.] may confusing Instraction 7 jury, referring have been to the to other immorality acts specifying without the to. acts referred In words, other jury may as to which acts have been confused merely were immoral and as to which acts were criminal char- acter. And 4, Instruction had the in re- same vice as Instruction ferring advising jury the acts of without that such acts Taylor’s on part should not unless be considered found defendant acting were conceiT for common purpose. However, not we have condemned these two instruсtions given cautionary because purposes, and, opinion, in our were not harmful.
Y. The
only general assignments
motion for a new trial contains
of error as to
assignments
refused and omitted instructions. Such
present
nothing
198;
our review.
1925, p.
v.
State
Standi
[Laws
fer,
-108 only accused and this legal mind Tbe trained owes sometimes, who juror, honest to the society whole, as well as a 190 S. Davis, v. led amiss.” sentiment, is [State of human reason his substantial one of deprived of l. The defendant W. c. 298.] jury instruct properly trial court rights by failure a fair and accorded therefore, not was, case, and law of the on the impartial trial. complained of, matters in the other merit find no substantial AYe improper giving of indicated, but, the errors above because of reversed, judgment is jury, prejudicial to the instructions *17 Iligbee, C., concurs concurs; Davis, G., and the cause remanded. Paragraph I. result, but dissents as ITenwood, C., is opinion foregoing
PER CURIAM: —The result; court; Walker, J,, concurs adopted opinion Blair, J., sitting; White, P. J., concurs. Baking Grocery Kroger Company, and Rolla &
Leslie Boston v. Railways Appellants. Company, Wells, United Receiver of (2d) 7 S. W. 1006. 21, 1928. Two. June
Division