*1 1924. TEEM, APEIL Yol. v. Hamilton- any wager
bеing allegation or was tbe made, bet no charge violation of statute. to information fails parte judg- Fleming Wengler, 269 [Ex 366.] The Bailey, G., ment affirmed. concurs. is foregoing opinion of PER CURIAM: The Higbee, opinion adopted hereby All court. is as the of the of C., judges concur. Appellant. THE STATE HAMILTON, v. HARRY Two, June 1924. Division Substantial. Evidence: an APPELLATE PRACTICE: Sufficient 1. appellate pass at court will not action law the any whether the verdict of to determine further than supported evidenсe. substantial is prosecution Penetration: In a Proof. CARNAL KNOWLEDGE: 2. penetration may knowledge, proof established for carnal penetration slight proof evidence, is of actual circumstantial sufficient. Credibility One False As to of Witness: Material INSTRUCTION:
3. credibility of the witnesses should not Fact. instruction on the An any indiscriminately “if believe that the clause contain falsely any fact, you knowingly to material are sworn has witness portion testimony,” liberty reject of suсh witness’s all material facts where witnesses, court, the trial in the of other with that variance discretion, may judicial such add clause to the a sound exercise of instruction. usual Exemption: Asserted Self-Incrimination: Constitutional. WITNESS: brought by prosecutrix, right de- who Another. The who with him has been this and state to from another fendant Act, charged the Mann a violation of Court with the Federal testify, refusing right privilege of is a her constitutional claim priv- her, personal told of her constitutional and where she defendant, ilege trial in the she testified before privilege, her, knowledge to claim such and declined de- carnal appeal, her; cannot, it trial or on claim for at the either fendant SUPREME COURT OF MISSOURI, being competent assignment witness an right she was not advised constitutional without merit. Against
5. INSTRUCTION: What Said Defendant Himself: Presumed *2 to Be relating voluntary True. An instruction statements made by relating defendant to the offense in the indictment jury which tells the that “the is entitled what he said himself, truе, any- for if State is entitled to the benefit of thing may against proved by have said himself statement State; himself, against anything, what the defendant said presumes true, negatived by law be unless other some evidence cause, against himself; because said what himself, believe, said for are not bound to it because proved by State, may a statement believe it it disbelieve shown is. to be true or false cause,” although given request State, has been uniformly approved by ,an unbroken line of decisions in this State eighty years, again approved. for and is Law, Rape, Criminal 1: 17 J. Headnote C. sec. 3595. 2: Headnote Cyc. Law, Headnote 3: Criminal 33 1487. 16 C. J. sec. 2442. Head- Cyc. Witnesses, 2548, Law, 4: 40 2547. Criminal note Headnote 5: 16 2422. C. J. sec. J„ City Appeal Circuit Louis from St. Court.—Eon. Judge. Eugo Grimm, Affirmed. appellant. Roy A. Fish and Fish for E.
William
(1)
have
Tlie court should
sustained the motion for
against
as the verdict
new trial
evi-
.(2)
giving
court erred
The
instruction
dence.
num-
part
especially the latter
of said
4,
bered
instruc-
Mangrum, 245 S.
817.
W.
tion.. State
Attorney-General,
W.
Barrett,
Jesse
Robert W.
Attorney-General,
respondent.
Assistant
Otto,
(1)
refusing
court
not err in
did
to advise the
prosecuting
privilege,
(a)
her constitutional
witness"of
privilege against
self-incrimination
afforded
Ar-
purely per-
Constitution of
Missouri,
ticle
section
TERM,
Yol.
APRIL
1924.
21
and the witness cannot claim the
witness,
sonal to
person.
Kennedy,
privilege
of another
151
(b)
(U. S.)
SO
652.
Henkel,
Hale v.
Law Ed.
question
constitutionality
may
not rаise
when
One
rig’hts
personal
have
been
constitutional
invaded.
re
Crawford,
Tartar,
S. W..581,
Stouffer
(2)
Baskowitz,
The case was tried before on June 26, 1923, day, following on the and, same verdict was returned: jury in the “We, the above entitled cause, find the guilty rape, in the indictment, punishment imprisonment pen- and assess the in the years.” itentiary (10)
A motion for a new trial was filed and overruled. granted allocution Thereafter, was defendant, the mo- judgment tion for a trial new overruled, rendered, sen- pronounced tence in accordance with the terms of the appeal granted and an verdict, said defendant to this court. on
The evidence show behalf State tends to age an .Carter, Bessie unmarried female of the years, living fifteen 1922, October with her mother at met Alton, Illinois; that she defendant, September Harry Hamilton, about or October, 1922, to meet continued him thereafter on occasions when she happen go down that on town; would March *4 accompanied she the defendant to St. Louis, Missouri, place arriving night; at the latter about ten o’clo'ck that took her to the Portola Hotel in said registered city, night, on “Mr. and Mrs. said and ’’ assigned that to Room 18 in Thocker; ©aid arriving that hotel; room, after defendant in- going sisted on Carter which did; Bessie she bed, that during night, prosecutrix awakened, found the lying defendant during beside her in bed; undressed that night something “did to her;” defendant TEEM, 1924. APEIL Vol. top on defendant was she some- her,
that while thing felt private parts, in her that it was did know private parts; that she before defendant’s testified jnry grand woke her, that “defendant and had inter- cross-examination, her;” that she tes- course private felt did not know “if what she in her tified, she parts private parts of the defendant or fin- his three-thirty April morning ger;” about that police knocked at the of Eoom officer door 1st, stayed had admitted she and was the defend- where pass key; gave that his or use of a cor- ant, defendant prosecutrix gave her cor- name to said officer and rect police officerentered said room, rect that when the name; dressed in and when underwear, the defendant was his prosecutrix was she sister. asked who the stated was his interrogated prosecutrix further to her tes- timony grand as follows: before the parts privatе you put ‘Did he asked, “Q. Were you you yours? A. Do remember how Yes, sir’? A. sir. answered it? Yes, ‘‘ you Do remember now he did : Court A. Yes,
not? sir. you Do remember did Q. “Mr. Johnston: night? A. sir. No, bleed you? Yes, hurt A. sir. “Q. Did it parts? your private you hurt —in “Q. did Where sir.” A. Yes, substantially as follows:
Defendant’s Alton, mother in Illi- with her lived That Bessie Carter since De- defendant had known that the mother nois; frequently called at her that he 1, 1922, cember permis- (defendant) mother asked the home; prosecutrix, marry Carter, Bessie sion to marriage; thаt defendant and consented to mother being purpose Louis for came to St. prosecutrix to the Portola took married; that defendant upon arriving ten o’clock at about at St. Louis Hotel prosecu- night; arrival, that after their *5 SUPREME COURT OE MISSOURI, State v. Hamilton. City marriage trix went to Hall to obtain a license, building registered but found closed; that he prose- the assumed name of Thocker for himself and upstairs that then went cutrix; Room sh¿ Bessie Carter went to bed that first; did nоt take off except any clothing her shoes. Defendant testi- just fied that he did not take off of his but clothes, laid down the bed with his clothes on; that he loved prosecutrix, expected marry her, and was still marry willing to her; that did not have intercourse night. prosecutrix, nor touch her that remaining questions presented by the record opinion. will be considered in the Appellant assignments I. in his brief makes two ‘‘ of error as follows: First. The court should have sustained motion tor а new as trial, SufficientEvidence. against the verdict was of evi- ’’ dence. present history This court from its earliest to the unanimity, time has held with marked actions at brought appeal, pass upon law weight'of here will it jury, except before the so far determine in case of character, whether supported the verdict of the substantial evi Ry. (Mo.) dence. [Burtch 236 S. l. c. Co., (Mo.) Barnett v. Hastain, 256 S. l. c. cases interposed appellant cited.] The no demurrer to the evidence at the conclusion of either the State’s case, allege at the conclusion of the He whole case. does not assignment in his of errors the trial court should acquittal. simply have directed a verdict of He asserts that his motion for new have trial should been sus charges because it tained, evidence failed to organ penetrated show the male of the female organ prosecutrix. Having carefully read the entire (cid:127) record and briefs in we will consider the case, above assignment though question involved therein was presented properly for our consideration. APRIL TERM,
Vol.
State v. Hamilton. considering testimony relating sub- the to the ject penetration, keep in we should mind the facts jury. they presented prosecutrix to the put the first witness stand State and, testifying her Bessie Carter that name and .after here is what her coun- Illinois, lived at Alton, that she representing thе defendant herein, also to sel, jury: court and pleases, Fish: If want to make
“Mb. the court we girl fath- of this and the a statement. The mother short attorney, girl her to de- er have retained me as of this in also and United Court, fend her Juvenile pend- charge Mann Act is where on the States a Court, against prosecuting ing and the witness defendant, attorney, her her con- now advise and as want to her I rights; to she have testi- is, stitutional doesn’t fy to; that she claims unless she wants this case here ground anything rights, on the constitutional her court; might her in some other incriminate here she said testify to at this time unless does not have and that she testify testify, in this can refuse and she wants to . case. . . .if Bessie, You Q. understand,
“Mb.. Fish: testify you . . have to. . don’t don’t want “Mr,. acquainting her attorney and I am her Fish: rights, can of course she and with her constitutional pleases.” do as she testimony heretofore set
The witness continued privilege. personal claiming any without out, suggestions right Mr. the above to consider had the prosecutrix determining told the whether Fish, regard penetration, when she was whole truth in the defend- darkened with room,, in a defendant, bed with penis finger in her female top ant with her, organ, etc. prosecutrix Alton, leave
Why defendant did the night, come to city after inhabitants, of 25,000 they Alton, have married when could St. Louis SUPREME MISSOURI, COURT OF
State v. Hamilton. girl expense saved the mother the trouble and coming Why wedding? Louis St. to witness the did go they City night to the Hall at ten o’clock marriage when license, must have known that said reg building Why be closed? would did the defendant girl ister himself and an husband and wife under Why caught assumed name? did the when defendant, police girl, officer the room with his clothes tell the officer that Bessie Carter was his off, prevent sister? there from What was having sexual intercourse with *7 top circumstances when he was on of aforesaid, her, position perform operation, the without resist* being girl, although anеe offered the she knew her parts private being injured by defendant and he opinion causing pain? was foregoing We are of the that the jury the facts circumstances warranted finding night' that defendant on the of March 31, prosecutrix, had sexual Bessie Car intercouse with penetration may St. Missouri. Proof of ter, Louis, proof slight of shown circumstantial evidence, penetration page L. actual R. sec. [22 is' sufficient. C. v. 1177; 469; Williams, State Devorss, Taylor 1052; l. l. v. State, с. 173 S. W. c. People Crowley, N. Y. 234; 111 Ind. v. State 279; Depoister, Hargrave, 21 Nev. 466; 65 N. C. State (Ky.) l. c. Hale v. S. W. Commonwealth, People 193 N. l. McGrath, Bernor, c. Carnagy, (Ia.) (Mich.) N. 74 N. 76 W. 184; Kenney l. c. State, N. Mason, 189 W. (Tex.) (Tex.) 220 W. 79 S. W. Blackmon v. State, ] . 93 foregoing especially those outside authorities, The jury finding clearly on of our sustain the gather penetration. from We facts as to aforesaid, slight, penetration, is suffi- these authorities that however and circum- from facts and that it be shown cient, developed in this case. stances in evidence detailed TERM, 1924. APRIL Yol. v. Hamilton.
Taking of face value, its jury, credulity a reflection on the who it would he any doubt this to hold that had about case, tried prosecu- having sexual intercourse had nighttime top of her in trix when he was on aforesaid. court the circumstances instructed relating jury with intent to an assault as to the law rape among jury, other commit and authorized things, a conviction under this warranted the evidenсe impose charge, defendant. a fine of to even $100 reading the from record, It manifest, however, prose- brought that the believed assignation purposes, and that cutrix to St. Louis afore- her in Room 18 he had sexual intercourse with place in the information. said, at time in reach- warrant evidence was sufficient assignment foregoing ing error conclusion. The accordingly overruled. appellant’s assignment error in II. The second giving In- court “The еrred brief follows: reads as part in- especially latter struction 4,No. appears complained portion struction.” The 4,No. paragraph instruction conclusion of the last *8 which reads follows: as sole the that are you
“You are further instructed the judges credibility witnesses and of the of the testimony. de- given their to to be you Weight credibility will termining such' FalsusinUno. wit- of the the character take into consideration or interest, her stand, or her manner ness, his or relation to any, his or trial, in the result of if prоsecuting feeling or towards towards improbability probability his or her or witness, circumstances all the facts and well as statements, you, given in- are in In this connection evidence. further knowing- any you that witness has that believe structed ly liberty falsely any material are at fact, sioorn SUPREME COURT OF MISSOURI, y. reject testimony.” any portion all or such witness’s (Italics ours.) . italicised, complaint portion of is leveled at the outset, It instruction. be conceded given the above indisсriminate instruction should ly, only where there evidence which is in cause ju court, would warrant in the exercise aof sound giving in dicial discretion, same.
defendant heretofore given by out so at set variance with regard
other in witnesses to material facts, that typical presented giving in is here for the case of this validity upheld if its struction, can be estab procedure legal lished rules of State. in this Falsus recognized leading uno, omnibus, one of falsus legal jurisprudence. history 'early maxims of Prom the present principle of our to the an time, of law recog thoroughly nounced the above maxim has been being properly presented portion nized as in the italicised complained of the instruction of in case. this It is not only requisition by called into case, State, as frequently by but more the defense in both civil and criminal actions. In the case of c. l. Mix, Mo. 159, the court, at the instance of the over defеnd objection, gave ant’s Instruction fol 6, which reads as : lows
“If the believe from the evidence McAfee, any willfully other knowingly has witness, testi- falsely any'material fied they cause, fact in are liberty reject any part the whole or testimony such which witness, is inconsistent with other truthful (Italics evidence ours.) cause.” The court refused Instruction 7, as asked defend- ant, as follows: * “If the believe from the wit that the willfully ness, falsely McAfee, testified material fact in the casе, are authorized to re discredit and ” ject testimony. the whole Ms *9 represented case both sides was able lawyers, Judge and after due re- consideration, Ryland, 29 TERM, 1924. APRIL Vol. State v. Hamilton. account giving on of canse, remanded
versed Instruction said 6, Instruction refusal in above of law in this State as principle The established de above, followed since strictly been dicated, has Wimer, following Gillett v. cases: by the cision, as shown v. Paulette 553; 25 Mo. 78; Dwire, l. State v. с. 166; Mo. l. 63 c. 57; Elkins, l. c. v. State Brown, State 599-600; l. c. R. Mo. Co., v. H. & J. R. 66 Brown St. Mo. 120 Catron, v. 162; Mo. l. c. McFadin v. 107 Patrick, Huds c. State v. 406; v. 134 Mo. l. Wright, l. c. State 270; c. l.Mo. 186 200-208; l. State Swisher, 159 c. v. Mo. peth, State 191 90 Mo. l. c. W. S. Bond, State 138- Shelton, 223 Mo. l. c. Mo. l. c. Feeley, 194 204 c. 266; S. l. Barnes, (Mo.) W. Marlin, Mo. 204 W. Barnes, 274 S. l. c. 434. (Mo.) W. authori It will be observed from the above reading been has complained the instruction of here ties, as an unbroken line of decisions run recognized proper through seventy years. than We period of more ning this аre asked counsel for to overturn appellant now of law in our principle strength elementary Court opinion Supreme of the Arkansas State, 245 S. Mangrum following;. in the been rule of law declared Arkansas has cases, court in State v. especially considered Mix, l. 599-600; Mo. c. Brown v. Railroad l. c. Co., Mo. Barnes, c. 162; l. and in State v. Patrick, 107 204 S. l. well (Mo.) c. 266. each of cases, these as in the cited, others we refused to follow estab the rule lished in our Arkansаs, sister State of adhered to the Missouri cases. The rule, declared foregoing above assignment overruled. is likewise No other errors alleged complained
III. are appellant’s brief. No motion in arrest of judgment nor filed, is there any complaint against sufficiency the information or the verdict jury. *10 SUPREME COURT OP MISSOURI, asserted,
IV. Ill the motion a new it is trial, for con have been should to advised as rights, regard testifying stitutional for in to as a witness appellant’s by the State. advised She £ compelled Priyiiegeí°na to counsel that she.could not be testify She a witness the State. privilege claimed no of that kind in court below, asserting question is none here. The whether she as to compelled testify might presented could be have been personal privilege, her as a is in no but the defendant position right in assert behalf. She was competent wife, defendant’s a and was witness for might testify State. The defendant as to have refused to thosе which matters were him, calculated incriminate personal privilege but cannot in his assert behalf, belonged Cyc. prosecutrix. alone to ex [8 791; State County Ly rel. v. McIntosh, l. c. 604-5; Greene dy, 263 87.] Mo. l. c. Complaint
V. is made in the motion trial, for newa given as to instructions numbered 21, and 3, the court. correctly Those regard numbered 1 and 2, state law rape, attempt rape. and an to commit a the lat Under if authorized, tlie ^17 ter’ instructions. simply impose upon warrаnted to it, defend ant a fine one dollars. hundred The authorities cited fully support the State the correctness of both of said objection specific pointed instructions, and as no is out necessary to either we have not deemed it to consider the matter further. given by
VI. Instruction com- court, also is plained specific of in the motion ob- for new trial, no jection lodged against assigned it, nor is error appellant’s regard brief to said instruction. reads It as follows: you
“If believe find from the evidence that any voluntary defendant made statement or statements Yol. TERM, APRIL v. Hamilton. after indictment in relation to the offense been to have comt such is alleged offense Defendant what statement such must consider mitted, you light all together, EUmsei|ainSt or statements under which of the circumstances entitled made. The believe is entitled true, himself, what he said for *11 him- have said against anything may benefit to the State. рroved statements by or in statement any self himself, anything, against said the defendant What other negatived by some true,.unless to be law presumes himself. against said because cause, in evidence are himself, jury What or statement in a it was said because believe, bound believe but the by State, statements proved shown be or false it is true or it as disbelieve it cause; is for consider, this how much facts and circumstances evidence, all the statements, of the dеfendant statement whole the evidence this proved jury,'from worthy of belief.” case, deem Number hereto part like that instruction, 4,
This recognized has been as a declara considered, proper fore from the his character, early tion of cases law, to the time.’ present of the State v. tory McCleave, [State c. State 816; Long, (Mo.) W. l. v. 253 W. (Mo.) 256 S. S. 252 l. c. State v. S. W. l. 732; Johnson, (Mo.) 625; c. State Glazebrook, v. l. c. State Parr, (Mo.) 905; 246 S. v. 242 l. (Mo.) 933; S. W. c. State v. 285 l. c. Schnurr, Mo. 678; 225 S. W. Stаte 271 76, Wansong, Mo. l. c. 195 v. l. 1002-3; Simenson, 267-8, S. W. c. State v. 263 Mo. l. c. 172 601; State v. 255 Mo. l. Powers, c. 269,164 S. W. v. 466; Creeley, State l. c. 162 737; S. W. Mo. l. Davis, State 226 c. State 185 Knowles, l. Mo. c. 152 Darrah, Mo. l. c. 541; State c. Young, 495, l. State v. Brown, 104 Mo. Curtis, State v. 70 Mo. l. 596-7; c. Mo. 69 West, 57 l. Carlisle, c. Green v. State, Mo. l. c. 392.] SUPREME COURT OF MISSOURI, Rutledge. instruction Mo. l. c. an Knowles, con J.,
like the one bar in full. was set out Gantt, sidering same, been so said: “This instruction has often challenged approved that must decline we as often again (Italics ours.) discuss it.”
Some of the' other the same authorities cited made holding With a uniform line of decisions .announcement. way, through period eighty years, the same we of over validity think the book should be closed as to the of the in- long- struction under consideration; and it should no er question, considered debatable in the absence legislative subject. enactment only
VII. assign- We have not considered the two by appellant, ments of error carefully made but have read instructions and all the in the case. We inductions as favorable conclusion legal right to defendant he' had ex- pect. prej- No error was committed to the court, appellant, rejection udice of in the admission or of testi- mony. opinion, *12 are of We that he received a fair and impartial intelligent jury, legally trial before an and was upon judgment convicted s%ibstantial evidence. The be- accordingly Rigbee, low is affirmed. C., concurs. oрinion foregoing PER CURIAM: The Railey, adopted opinion isC., as the of the court. All judges concur.
THE Appellant. STATE v. WORTH RUTLEDGE, Two,
Division June 1924. Sufficiency: Consistency: BURGLARY: Circumstantial Evidence: Con- jecture. that, burglarizes In this case the evidence drug wholly circumstantial, store is and all the facts to which innocence, testified witness are consistent with his and no substan- guilt produced, tial guilty of his and the verdict of conjecture, judgment reversed, rests mere and the and de- discharged. fendant Burglary, Headnote: J. C. sec.