*1 316. Supreme Missouri, You. affidavits as out certain brief, has set V. The defendant after which were executed alleged newly discovered mentioned They are court below. was tried in the case or set out the bill they called for are trial, nor motion a new They transcript are no on file here. exceptions or Newly and cannot be consid- part of in this ease the record ere¿ purpose whatever. ^y this court for [State Ev¡dew:?d cited; and numerous cases v. 217 S. W. Baugh, cited; 240 W. and cases Morris, S. & Coat v. Kline Cloak Co. Sadowski, v. W. Sanders, State v. State 1027, and cases Smith, v. 256 S. W. cited.] every phase presented this case fully VI. Ve have considered would, justify therein which us record, and find no error fully protected rulings in its granting a de- new trial. rejection testimony. It was exceed- fendant in the admission and presenting ingly in the instructions defendant’s liberal Conclusion. sj(je case_ -y^e opinion 0£ ^he that defend- 0£ are impartial unprejudiced trial a fair and before received ant has upon evidence, substantial he has been convicted jury; during progress of the trial of which no error was committed complain.' judgment accordingly below is legally affirmed. can C., Higbee, concurs. foregoing opinion Railey, C., adopted
PER CURIAM:—The White, Blair, concur; Walker and JJ., the court. opinion as the except Paragraph and in all J., concurs result Johnson, Appellant. Robert The State Two, Division December Adjuration without Threats or Promises. A confession 1. CONFESSION: adjuration urgent exhortation
to an officer to tell harm not inadmissible because of truth, improper influence was exerted and no threats of no worldly advantage promises were made. The fact that defend- made a and that the confession was without caution ant was under arrest against him, promises warning might threats or it be used only adjured speak truth, made, urgently does not render he was the confession inadmissible. negro, charged -: Threat of Mob Violence. Where woman, days ravishing after the crime was a white four with was midnight city, taken the marshal about arrested in the city county, the marshal in his office said de- and there smaller will suit me. I don’t fendant: “The want we of town better it sooner out happen. any party. me tell I Come don’t want JOHNSON. 1926] you everything know,” lynching, having there it been no talk or rumor of a violence, cannot be held that the confession was induced fear of
although marshal, made, possibility after it was to forestall a of mob violence, prudently turned defendant over to the sheriff. To render inadmissible, must that defendant was induced *2 violence; it under the influence make from of a fear of and it not does evidence that the confession was induced such fear. Impeachment: CHARACTER 3. WITNESS: Disconnected Crime. Where the defendant on cross-examination had testified that con- he had been larceny burglary years capital victed of five his trial before for offense; of his character unimportant permitted was it that the court one the State to ask witnesses, general reputation had testified who that his morality good, if she knew that defendant had served a term in penitentiary, objection being question that called for a state- specific Admitting question ment of a and disconnected crime. improper, still, testimony, in view of defendant’s it was harmless. Arbitrary 4. JURY: Misconduct: Leave File Affidavits: Denial. charged jurors Where motion for a new trial that the before defendant, hang called on their voir dire declared that if chosen would support days and leave given, file eight affidavits in of the motion within arbitrarily refusing the court did not act five to extend the time days more, showing diligence, where there was no de- counsel for fendant refused parties to disclose the names of the whose affidavits intended to file. Rape: 5. INSTRUCTION: Criminal em- Intent. An instruction which every (Sec. braces 3247, element the crime as defined in the statute 1919), stressing force, consent, R. resistance, penetration even want and ut- though most require is not erroneous as to even it does jury to find that the offense was criminal committed with a intent. -:6. -: Omission of Element of Intent. An instruc- Criminal require tion need not to find defendant’s ravishment forcible of a married woman was committed with a criminal The act intent. necessarily itself is knowledge illegality, criminal and involves of its knowledge necessary no averment of or criminal intent is other than involved in a statement of the facts which the statute declares constitute the offense. 7. RAPE: Cruel Punishment: Death. Punishment a defendant at death of clearly whom the rapé upon shows a married to be woman, assaulting upon accomplish even the head with iron bar to purpose, statutory prescription, is within the and the verdict will not theory unusual, set aside on the itself evi- it is cruel and and of passion prejudice part jury. dence of Juris-Cyc. Law, J., 1125, p. Corpus 16 Section References: Criminal C. 31; 39; 719, 54; 582, 29, 1468, 717, 1473, p. p. n. Sec- n. Section n. Section 22; 1496, 728, 1476, 721, 83; 1482, 724, p. p. p. n. n. Section n. Section tion 54; Section'2747, 2422, 1004, 40; 2368, 970, p. 97; p. n. n. Section Section 324, 32; J., 3665, 1233, 7; 3195, 1357, p. p. n. p. 17 C. Section n. Section n. Cyc., Rape, p. Evidence, 581, p. J., 33 n. 22 C. Section 2; 8; 11; p. 1416, p. p. n. 2. n. n. n. G. A. Court.—Ron. Wurde- Circuit Appeal from St. Louis Judge. mcm,
Affirmed. SupReme Missouri, Yol. oe
88
appellant.
George Heege for
Iioester,
F.
G.
Jr. and
Jitlian
evidence,
erroneously admitted
alleged
(1)
fear, then
of duress
because
the written confession was void
437; State
237 S. AY.
Hart,
State v.
the verbal confession was void.
State,
952;
242
Moore,
160
S. AY.
Hector v.
Ellis,
State v.
testimony
(2)
admitting
on behalf
Mo. 166.
The court erred
spe-
witnesses as to
of the State elicited
defendant’s character
and the 'commission of
reputation
cific instances of defendant’s
Hulbert,
specific
charged in the information. State
offenses not
(3)
It was abusive
Seay,
S. AY.
S. AY.429.
part
permit
not to
discretion
of the court
charging
trial,
mis-
support
file affidavits in
of his motion for a new
tried
conduct
of certain members of the
who
(4)
case.
Instruction
was 'erroneous
should not have been
given,
properly
charged
because it does not
define the offense as
information,
require
because
does
to find
*3
offense,
that the
order to have been
must have been
done with criminal intent.
v.
267
Gilreath,
(5)
State
S. AY.880.
The court
in refusing
give
erred
defendant’s Instruction
as this
negative
instruction
principal
tended to
the State’s
instruc-
tion
required
find
the defendant struck the
prosecuting witness and assaulted her with the intention of commit-
ting
charged.
the offense
If
assault
was committed with
in-
rob,
Gilreath,
tent to
then the defendant
guilty.
was not
State v.
267
880;
AY.
S.
Cantrell,
State v.
234
800;
S. AY.
Majors,
State v.
(6)
237 S. AY.486.
The verdict of death
as assessed
is a cruel and
punishment
unusual
purview
within the
of the Con-
stitution of Missouri and of the United States.
It could be reduced
by this court if the
defendant is
and the case is otherwise free
of error. State v. Allen,
(7)
North Gentry, T. Attorney-General, and James A. Potter, Assist- ant Attorney-General, respondent. prosecuting
(1) testimony direct, was posi- by any physical tive, and uncontradieted consistent fact. AYhere testimony offered part substantial on the there of the State jury. be submitted to State v. 74 AYarner, 83; the case must Mo. 607; 174 Pollard, v. Mo. v. Hughes, 272; State State 258 Mo. State 89 v. Johnson: State 1926] 113; v. 238 W. State S. Loness, Belknap, 45; 221 S. State v. v. W. Cox, v. 616; 284 Mo. State Jackson, 24; Hlaseall, 283 Mo. State v. Stackhouse, 499; v. 278 State 215; Bowman, 263 v. S. W. State and num- given (2) The instructions Mo. 444. every fully neces- covered proper bered one six form 525; v. 271 W. S. State sary Hutchens, v. issue the case. State 44; Hayes, Mardino, 48; Davis, 268 S. W. S. W. State v. 127; Perry. W. Hamilton, S. State v. (3) 273 W. in- 267 S. S. Woodard, W. refused. The first properly struction defendant was offered requested by clearly erroneous. instruction rape might intent to at the assault with have formed time the pin might the iron committed; or it have been formed after assault with pin. the iron whether The issue case was defendant ravished witness and not when the intent to ravish was formed. Sec. R. guilty in the Circuit found
HIGBEE, C. The defendant punishment of the crime Louis Court of St. appealed. has death, from which he assessed Faenger and his that Frank shows for the State
The evidence six-yearmld daughter, lived in wife, Faenger, and their Mabel County. This in St. Louis village small of Afton house near the public On highway. back from the house is a field and stands negro aged morning Tuesday, vicinity twenty-six, left his Louis went out home St. Walking picked aup
Afton. track of Railroad he on the the Frisco coupling pin. Faenger house about 10:30 He came to the m. a. Faenger alone, Mrs. being her husband at work St. Louis and *4 girl the little at school. Johnson and knocked the kitchen door asked for something Faenger eat. Mrs. said she would him something, presently closed door and returned, the opened the door egg and offered him a cup sandwiches and of coffee. Johnson said- eat; “I I want and you,” don’t want struck her several coupling pin. on floor; blows on head the She fell the with the de- her, she all bloomers, fendant and ravished tore off her time screaming, strength. fighting resisting of and to the limit her proof penetration of fist clear. Johnson struck her his then on right her eye and went looking into money the bedroom and jewelry. Faenger Mrs. testified that she was conscious all the time and that she ran from the house screaming into the Mr. field. Horst and sons, his two working who were some away, feet heard her running screams and saw her and staggering. They ran to her; blood was running head; from her she was weak and nervous complained and of negro’s They assault. took her to Mr. Horst’s Supreme Missouri, Vol. from profusely bleeding found her Wagenbaeh and came Dr.
borne. Lutheran skull, her to the and sent head, to the which were cuts on the the skull. of fractures X-ray picture several Hospital. An showed not render did fractures hemorrhage, and the There was no internal Faen- Mrs. Wagenbaeh examined any time. Dr. her unconscious at a venereal contracted had day to see ger’s next private parts lacerations bruises a mother disease, because she sexual act. parts had resulted private day 9th, the crime of March the afternoon On Groves, and several police chief of of Webster McDonald, Andrew a pin They coupling Faenger’s found the others, went house. adhering; and hair few feet from blood the kitchen door with diameter, on pools one foot blood, found two each about cup and fragments a broken coffee floor; they kitchen also saw the bed- of a dresser floor, the drawers egg and on the kitchen about. tumbled pulled had and the contents room out and notified got description of McDonald a Chief day, Satin policemen arrested on Louis defendant was St. Lenz, another McDonald March 13th. over to Tie turned arriving there about Groves, They officer. took him to Webster midnight. 25th, and on hearing on preliminary had a
The defendant April filed in the Circuit Court St. Louis 5th an information was charging having carnally known and ravished County, him with Faenger day On county Mabel at said on March the same arraigned pleaded guilty. defendant case .the April following day 26th, went to trial before on and on the finding returned a verdict defendant charged assessing punishment at death. information, and May overruled, 14th, new Motion for trial was filed pronounced hanged on June sentence that be George appointed Jr., C.- Hoester, The court Julian F. TIeege, bar, members to conduct the defense. record imposed discharge shows did not fail of the duties argu- They typewritten them the court. have filed brief argued orally appeal They assign ment at our bar. the ease necessary. will far as errors, numerous which we consider so assigned admitting Error is the defendant’s oral Lenz; officers McDonald and it was mob induced fear of violence and was promised that, confessed, if he it would go easier with him.
The court, of the jury, absence heard tes- Chief McDonald’s *5 timony as to oral statements made defendant and a written confession. The court ruled that the oral statements would ad- mitted, but On written would not. the return of 1926] v. Johnson. substantially oral statements testimony as to the
repeated. returning to Webster On in substance: McDonald testified Chief 13th, midnight March defendant, about Johnson, the
Groves with interro- my Before we started I him to office. Officer Lenz and took get Johnson, the sooner we gating the defendant I said: “Come it will suit me. get town, out of the better started, we the sooner will any party; up come happen, I don’t want I don’t to want a mob. He you party A means everything and tell know.” me setting a little house Station road to said he went across the Laclede door, and road, knocked on the back a field on the side west eat; something and for he lady came and he asked work egg cup brought two sandwiches waited the door and she coffee, the door he hit her the head when she came to something you; I want pin, eat; with this and said: not It’s looking jewelry. she fell back and he started into the other room rape said, Johnson, I you said: Did this woman? and he said I no. I you you want rape tell truth. If did not this woman don’t me the say you I said, Johnson, your place, if I did. I was would say raped that I if kill Tf not, this woman I did if would me. you raped it; you raped this woman knows if this woman doctor that it, examined her and if this woman knows tells me that you raped I it, said; Johnson, you her I will if know did you her you get by it; you know it and cannot lie and can't make a (?) court believe it and can make twelve men in United lie; yourself States it if you you it, believe it is a now know did and I you want to tell me the truth. He said, Yes, sir, raped I her. said, I Johnson, you I say you it, don’t want did not do because trying get you we are not anything you to admit did do, but truth, said, raped tell the her; I when she fell back room, pulled I went in I clothes, raped there. I her her. As I get wanted off she wanted to up. I hit on the head pin with the iron again, lay and told her to there, asked her if any money she had jewelry, no, she said and she was scream- ing. And he said he pulled went into the other room and out the drawers, dresser jumped up and she and run out of south, the door I ran north caught from the field and a Manchester car line and went home. Cross-examination: I don’t know if there was much discussion neighborhood about this affair. This offense was on Tuesday, 9th, Saturday and it was night, 13th, we talked with de- fendant. good There awas deal of feeling neighborhood to- wards Afton, but not much talk around Webster Groves. I didn’t
hear anything at Afton lynching about a party. I talked with five six that were standing got I there. a description case, *6 Missouri, Vol. oe SUPREME Court much I was not do with him. going to anything they were
it wasn’t I didn’t want away me, from being him worried about taken any around there. commotion the oral testimony to
A strike out the motion to of the evidence corroborated Lenz Officer confession was overruled. Chief McDonald. of because will excluded not be It is that a well settled confession C. J. speak the truth. adjuration
a
[16
mere exhortation or
an offi
be made to
inadmissible must
sec.
A confession to be
1476.]
him,
by
exerted
improper
influence
consequence
cer of
of
the law
advantage made
worldly
be
promises
no threats
harm or
by
fact that defend
officer,
such
is admissible. The
confession
render
does not
ant
made the confession
was under arrest when he
adjuration
truth,
inadmissible;
speak
it
no
nor
does mere
(syl.
Chief McDonald took to Webster St. Louis Groves about midnight on It appear does not the defend- 13th. presence ant’s Webster Groves was known. This the fourth day defendant, negro, after the had ravished Mrs. Faenger, white woman. lynch- While there had in fact been talk rumor ing prudent pursue McDonald knew that the course to under the prisoner circumstances to turn his over to the sheriff Clayton at possibility and forestall the mob violence. With this thought purpose in mind he took the the same hour ‘‘ night officeand to him: said The sooner we out of town the better it will suit me. I don’t want happen. ’’ I any don’t party; want everything you come and tell me know. It is contended that the confession was induced threat of mob violence and was inadmissible. render,
If there had been rumors or threats violence, of mob confession appear inadmisible it must from the evidence that defendant was induced to make confession under the influence of the fear of violence. It appear does from the evidence for the State that the was induced such fear. In State v. Anderson, Judge said: Blaoe “Now it does that Sales and Price, guards, any used
threats or words of intimidation. Doubtless there was considerable excitement in the community, but there is no certain evidence that persons number had combined to do the defendant harm. v. Johnson. 1926 \ only persons are the speculation of a few conjecture
Rumor, may, it a mob. But be of the existence of made appear that the defendant it should these confessions exclude is not disclosed shown. fear, and that influence them under the attorney is that Price, The evidence of Sales volition, and that of his by defendant own statements made prevailed in the com- being much excitement so, matters not how *7 properly in evidence. munity. were received confessions These weight- say they for to what Though true, this the be was that, add aside give And in this connection we would to them. many pointing to the confessions, there are circumstances the guilt the and Saunders —circumstances which would defendant require jury.” to to the court submit cause the the 167 66 Armstrong,
See also v. Mo. S. W. 961. State appropriate under properly The oral confession was admitted instruction, opinion. in as will later this general
Mrs. Deacon testified on that his behalf nf reputation morality good. for On cross-examination serving asked if she knew of term in peni- ever the defendant’s tentiary. objected spe- This was to because it was a statement of a objection competent. instance, cific and isolated and not The negative; overruled. The in only witness answered she said she knew penitentiary he had in newspapers. been from the The de- fendant cross-examination had testified he had been convicted of before, burglary larceny years St. Louis about five soiight unimportant. hence to be elicited was In Crow, State v. 107 17 S. Mo. W. this court said: “Reputation, itself, only can hearsay be known from information and give great the courts upon latitude question. cross-examination this Cooley ‘The real purpose (says Judge People, Annis v. 13 Mich. 511) of this cross-examination is to enable the court determine impeaching whether the general fact knows the reputation other, of the and if so, whether he truly regard testifies 461; it.’ Ev., Greenl. sec. 71 Miller, [1 Mo. State v. ” Beal, 68 Ind. also State v. Parker, 172 345.] [See 72 S. W. 650; Seay, 427 (4); C. J. sec. Kelley’s Law, sec. Crim. 382.] In Hulbert, 228 W. Judge David E. Blair (3), ‘‘ Complaint said: is made of the action of permit the trial court in ting to inquire the State of the witness Edna Luther, a character by defendant, witness offered whether she had been informed defendant had assaulted and held Phillip Bogart. one She was asked to rumors concerning alleged afloat assault, which would tendency have had a good reputation affect the defendant peace quiet. general is rule that inquiry of character wit- SupRbme Missouri, Vol. a defendant acts criminal separate disconnected as to nesses improper.” trial any report heard had if she asked might have been The witness but since penitentiary, having been defendant about the larceny burglary and had convicted testified harmless. unimportant and any, error, alleges that certain trial new paragraph the motion for One they were and before of misconduct were members of chosen to sit they voir dire declared on their called motion was hang defendant. jurors in would the case file affi- May 8th to given until May 1, 1926, leave filed complain that Counsel support motion. davits affidavits which to file extend this time arbitrarily refused to 8th, May counsel that on days. exceptions recites The' bill of five May prepare and file affidavits. until 12th to asked time parties affidavits give whose court asked the names counsel fair Heege: would I don’t believe it intended to Mr. file. parties names at this time disclose respect the defend- shall due affidavits, make these who refused to extend declines to names. The court ant disclose the *8 diligence of showing in was made time which file affidavits. No given procure within time of counsel to affidavits purpose, any showing that affidavits could for that nor was made given. if have obtained further leave been been had. given of its and the exercise discretion had leave to file the affidavits declining showing an of there of abuse its discretion to ex- tend the time. gave
The court six instructions for the State: ‘‘ 1. The court instructs the as follows: charged “The defendant is rape, the information with jury will find of guilty rape charged him either as in the informa- tion, guilty, you may or find him not as believe and find from the evidence, under these instructions. you
“If you find guilty, the defendant not simply will so state your verdict. you “If you find guilty, will your state in verdict you guilty
that find the rape, charged defendant of as in the informa.-' will tion, punishment imprisonment and assess at death or penitentiary state for a term of years. not less than two you “If believe and find from the at the St. and Missouri, Louis State of on or about the day March, 1926, 9th feloniously forcibly of did and against of witness, will Mabel Faenger, make assault upon her, feloniously forcibly against her will, did v. Johnson. im] guilty yon will find the defendant then her, know carnally
ravish the information. charged in of “ instructions, and these in the information ‘Feloniously’ used law, and refers against the admonitions wickedly, and means prescribed law. punishment the character of the you must rape, be- you find the defendant “Before can forcibly assaulted that the and find the evidence lieve Faenger at the time said Mabel with the and had sexual intercourse against her will. instruction, place preceding mentioned unless intercourse was such sexual there “You cannot find penetrated the you believe from the evidence Faenger private with his parts body said Mabel private you find that such intercourse parts And cannot to some extent. Faenger, or without will Mabel against of the said
forcible the utmost of which you find that resistance consent, unless she made consent or not such capable prevent it: and Avhether given, facts and circumstances should be determined from you proved by which consider the evidence.’’ presumption innocence,
Number is the instruction on the usual proof. and burden reasonable doubt you
“3. If and find from that the defendant the evidence believe any voluntary statement or made statements relation the of- charged alleged fense in the information after such offense is to have you must consider such statement or al- statements together, light you may and in the circumstances under which believe were made. ‘‘ The defendant entitled said for himself, true, to what he is entitled to the benefit of have said against proved himself statement or statements the State. against himself, What the defendant said anything, pre- the law negatived true, sumes to be unless by some other evidence in the cause, against because said What himself. the defendant said for believe, himself'the *9 are not bound to because it was said in a proved by statement or State; statements the jury the be- or lieve disbelieve it as it is shown to be true or false the evidence cause; in this consider, it is the under all the facts in evidence, circumstances how much of the whole statement or state- proved by ments the defendant State, the the jury, the evi- case, worthy this dence deem of belief. “A in order confession, to be admissible or considered, to be must is, voluntarily,
be made
that
anybody
without
holding
any hope
out-
leniency,
reward or
punishment
or fear of
doing
for not
it.
If
competent
is done,
that
it is
for the
to consider
give
it and
it.
weight
such
as
see fit.
right
You have a
to consider all the
party
surrounding the
at the time
circumstances
the confession is
Supreme
MissouRI, Vol.
all the
under
weight
yon
proper
as
think
made,
give
it such
circumstances.”
Number 5
on character.
instruction
Number
is the usual
6, that
Number
credibility of the evidence.
weight
the
in a
jurors
verdict.
twelve
must concur
is of
essence
that intent
instruction
asked an
The defendant
assaulted
believe
charged,
the offense
iron bar
with an
striking her
when he so assaulted
that
beyond
doubt
are not
a reasonable
satisfied
such
her and made
intercourse
have sexual
he intended to
acquit him.
they should
intent,
purpose
assault for that
because it does
is erroneous
first
It is insisted that the
instruction
and should have
whole case
offense;
it covers the
not define the
jury to- find
require the
elements;
it does not
included all the
intent.
a criminal
that the offense
committed with
every
rape; it
clearly
crime of
embraces
This instruction
defines
Statutes
Revised
of the crime
defined
Section
element
penetration
utmost
consent,
resistance
Force, want of
“the act itself is criminal and
are
instruction.
"When
stressed
illegality, no
necessarily
averment of
knowledge
its
involves
necessary
than is involved
a state-
knowledge
bad
other
intent is
[Kelley’s
Law,
Crim.
sec.
facts
ment of the
of the offense.”
199.]
ap-
challenges
It has
so often
appellant
Instruction
Railey
Judge
proved
to review the cases
declined
(11).
Hutchens,
There was no error the refusal of the defendant’s we question seen; the first on was erroneous as have of intent other, proper, far as the instruction so was. covered on reasonable doubt. properly refused;
The demurrer to the evidence the evidence guilt. no leaves room for reasonable doubt defendant’s challenged; clearly charges information is rape. crime of gravity On account of the of the case we have examined the record prejudicial with much care and find error. There er- were no rors the admission exclusion of evidence. Counsel insist that punishment assessed is cruel and unusual and is prej- evidence of jury. passion It is within punishment udice prescribed by Legislature, whose constitutional function to write people provide penalties the laws of the State and to for their violation. judgment Rwiley, sitting. is affirmed. 0., foregoing opinion by
PER CURIAM:—The Higbee, C., is adopted opinion judges as the All of the court. concur.