247 Mo. 657 | Mo. | 1913
Tried in the criminal court of Jackson county, defendant was convicted of rape, and
Defendant (colored) was a school teacher in Kansas City, Missouri, and was charged with ravishing Callie Cason, one of his pupils, of the age of eleven years.
The testimony of the prosecutrix is to the effect that when school adjourned'for the noon hour on May
The crime, if committed by defendant, was committed on Thursday, May 25, 1911. Prosecutrix attended school'on the following day (Friday), but did not inform anyone of the assault until about ten days later. On Thursday of the following week prosecutrix went to Kansas City, Kansas, to visit Mrs. Bell, a married sister, where she remained until the following Saturday evening. Prosecutrix further testified that she did not inform her sister of the assault while on tMs visit, but the sister (Mrs. Bell) testified that the prosecutrix did inform her of the crime while at her home. That she (Mrs. Bell) went home with prosecu-trix Saturday evening intending to inform her mother of what had occurred. She says that she forgot to tell her mother until about eleven o ’clock the next day (Sunday).
The mother of prosecutrix testifies that after being informed of the crime she called upon prosecutrix for an explanation; that prosecutrix “began to cry, and I asked her what she was crying for. She said:.
Two of the little girls who prosecutrix testified had “peeped in” to the school house at the time of the alleged assault, were called by the State. One of them testifies that, when she reached the school house, just after lunch, neither the defendant nor prosecu-trix were there; that they had gone up to Mrs. Dulin’s to practice on the piano. The other girl testified that defendant and prosecutrix were standing inside the school house when she arrived there. That she saw no assault committed, but that the dress of the prose-cutrix “was wrinkled.”
After his arrest defendant was examined by two physicians at the request of a police captain. These physicians found that defendant was suffering from gonorrhea, apparently a very recent infection of that disease.
Prosecutrix further testified that defendant had whipped her while she was a pupil at his school, but she could not remember how many times, or why the whippings were administered.
Defendant denied the charge. His testimony is to the effect that when he dismissed his pupils at noon on May 25,1911, he accompanied a little seven-year-old pupil to the home of her aunt, a Mrs. Edwards, about two blocks from the school house, eating his lunch as he walked along the street. That it was his custom to accompany this seven-year-old pupil home to. prevent the older pupils from fighting or abusing her; that from Mrs. Edward’s house he went to the home of Mrs. Dulin, a short distance from the school house. Mrs. Dulin is also colored and owned her own home
Mrs. Edwards and Mrs. Dulin corroborate defendant’s testimony regarding his visit to their homes-on the day of the alleged assault. Mrs. Dulin testifies-that defendant arrived at her home about ten minutes after noon on May 25, 1911, while she and her husband were eating lunch; that his pupils came in as soon as-they had time to go home for lunch. She and several other witnesses testified that prosecutrix came to Mrs. Dulin’s on May 25, and joined in the noon-hour singing practice.
A colored man named Thomas (a teamster) testified that he arrived at the school house precisely at noon on May 25, 1911, and went into the building to-use the telephone; that school had been dismissed, and that there was no one in the building at that time; that a few minutes later he went to Mrs. Dulin’s and saw defendant and prosecutrix there.
Defendant testified that the mother of prosecutrix was angry with him because he had whipped her children, and because he was, in some way, connected with some charity contributions which the mayor had sent to him for distribution on the preceding Christmas. That she had said he should not teach that school another term.
Three witnesses testified to the good reputation of defendant prior to the time he was arrested on the present charge. One of these witnesses admitted that he had been convicted and confined in jail. This conviction took place several years before the trial of defendant. None of the character witnesses seemed to be intimately acquainted with defendant.
Such further evidence and facts as will be necessary to a full understanding of the case will be recited in our opinion.
I. Defendant complains of the trial court’s instruction on the subject of alibi, bnt as this alleged
II. Defendant insists that the physicians who examined him while he was in custody should not have been allowed to testify to the fact that he was suffering from a venereal disease. To meet this insistence
When a man is under arrest, without counsel, and, Speaking metaphorically, is standing in the shadow of a policeman’s club, it requires something much more substantial than silence to justify an invasion of f his constitutional right not to be compelled to furnish evidence against himself.
If the evidence of the physicians had been objected to on the ground that the physical examination which they made under the orders of a police captain amounted to compelling him to testify against himself, as prohibited by section 23, article 2, of the Constitution of Missouri, then the admission of their evidence would undoubtedly have constituted reversible error. [State v. Newcomb, 220 Mo. 54, l. c. 65.] However, instead of objecting to this evidence on proper grounds, defendant merely objected because the physical examination took place after the preliminary examination before the committing magistrate. Such an objection was wholly insufficient to call the trial court’s attention to the incompetency of this evidence.
III. A third contention of defendant is that the
When Mrs. Cason was introduced by the State, defendant’s attorney asked her if she did not, at the colored church on Christmas Eve, 1910, make threats of personal violence against defendant. She denied making any such threats, and denied that she had engaged in any quarrel with defendant. Defendant thereafter offered to prove by witness Thomas that Mrs. Oason did make the threats against him as alleged. The evidence of Thomas was objected to on the ground that such threats, if proven, would not establish the fact that prosecutrix was angry with defendant, and the proffered evidence was excluded. This was error. Such cases as State v. Newcomb, 220 Mo. 54; State v. Goodale, 210 Mo. 275; and State v. Brown, 209 Mo. 413, impel us to recognize the fact that in this class of cases where the nominal prosecutrix is a mere child, the person having custody or control of such child is the real prosecutor or prosecutrix, and that charges of this character are sometimes preferred for ulterior purposes. However, under the law it is wholly immaterial who was the prosecutrix in this cause. The defendant had the legal right to bring to the attention of the jury any fact which would show malice or ill-will against him on the part of any witness who testified on behalf of the State, for the purpose of affecting the credibility of such witness and the weight to be given to his or her testimony, first having laid a proper foundation for such evidence.
In 33 Oyc. 1455, the doctrine is announced that, in prosecutions for rape or assault with intent to commit rape, “defendant may introduce any competent evidence, direct or circumstantial, to show that the charge against him was concocted by the prosecutrix or others. Facts or circumstances which tend to show the motive or bias of any witness who has testified, or the motive of the prosecutrix in making the charge, or to affect her credibility, are admissible; but such evidence is generally confined to bias or motive of one who has testified as a witness.” [See, also, 1 Wharton’s Criminal Evidence .(10 Ed.), sec. 359.]
However, it is not necessary to go outside of our own State for authorities to support the doctrine above announced. In the case of State v. Pruett, 144 Mo. 92, l. c. 94, Sheewood, J., speaking for this court, said:
“Error also occurred in refusing defendant permission to ask Crisman whether he had not ‘threatened .to kill defendant or run him off the place.’ This question was clearly competent, since it is always competent to show by such interrogatory that the witness has a bias against or hostile feeling toward a party litigant, and if the witness deny such feeling, etc., he may be contradicted, because it is always important*666 and all-important to show that the witness does not stand indifferent between' the contending parties.”
The case last cited was approved in the case of State v. Darling, 202 Mo. 170. [See, also, State v. Miller, 71 Mo. 590.]
We think the evidence in this canse entitled the State to go to the jury, bnt the frequency of verdicts of guilty on charges of rape, incest, carnal knowledge
This being a fact well known, at least to the courts, it is, in the opinion of the writer, necessary that officers should conduct prosecutions of this character with scrupulous fairness and avoid injecting into the minds of the jury any matter which is not proper for their consideration, or which would add to the prejudice which the charge itself has produced in their minds.
In the instant case the State, as a part of its evidence in chief, attempted to introduce proof of an assault upon another pupil who attended defendant’s •school, but such proof, upon objection, was properly
As the judgment must be reversed the prosecuting attorney should prefer a separate information
At section 29a the same author says: “While the law regards as relevant all facts touching the credibility of the accused, or that can aid a jury to determine the weight of testimony; and while the question •of relevancy must rest largely in the discretion of the trial judge, to be exercised by him with regard to the particular facts of each case, there is a marked distinction drawn between such facts and those sought to be brought out that merely tend to degrade the accused, •or, by innuendo, to place irrelevant testimony before the jury. Such questions ... as: ‘Have you not been arrested for felony?’ — where not propounded in good faith, or asked concerning facts that in themselves are irrelevant, constitute reversible error, entitling the accused to a new trial. And this is true even though such questions are objected to at the time ■on the ground of irrelevancy, and the answer excluded by the court. The reason is, the irrelevant facts have been placed before the jury by innuendo, the sinister influence remains, nor is it destroyed by the exclusion. It rationally follows, therefore, that the jury has been prejudiced against the accused as fully as though the Irrelevant facts themselves had been admitted, and nothing that the court can say entirely obliterates the effect. ’ ’
For the error of the trial court in excluding evidence of threats made by the mother of prosecutrix against the defendant, as before recited, its judgment is reversed, and the cause remanded for a new. trial.