State v. Katz

Jan 4, 1916
Reporters:
, ,
Before:
Revelle
REVELLE, J.

By information filed in the circuit court of the city of St. Louis it is charged that the defendant “did wickedly, feloniously, and against the order of nature, commit the detestable and abominable crime against nature with one Mary Emmenger, a female person, by then and there wickedly and feloniously insei‘ting and thrusting the sexual organ of him, the said Albert Katz, into the mouth of her, the said Mary Emnienger; the said Albert Katz being then and there a male‘person.”

Defendant was tried and convicted and his punishment assessed at imprisonment in the penitentiary for a term of two and one-half years.

The State’s evidence, in substance, is that about 11 or 11:30 .on the night of August 5, 1913, the prosecutrix and one Harry Schonberg, who had been acquaintances for years, were seated in Benton Park, where *499they were accosted by defendant and two companions, Harry Long and Richard Gausman, who falsely represented themselves to be private detectives. Long and Gausman seized Schonberg, and, under the’ guise of arrest, took him to one end of the park, while defendant forcibly and against her resistance took prosecutrix to the other side of the park, near a lake, and there ravished her. After the act of sexual intercourse was completed he forcibly detained her for sometime and then committed the unnatural crime alleged in the information. He then turned her over and inserted his private parts in her rectum. These transactions consumed about forty-five minutes, and just about the time they were finished Long and Gausman appeared and, in turn, and with the assistance of defendant, assaulted and mistreated the girl in the same manner as had the defendant. Their acts occupied about thirty or forty minutes. After this they took the girl to. a saloon about two blocks from the scene of the first assault and there purchased for her a glass of soda. It was then about one o’clock, and from this saloon they proceeded to the rear of an abandoned brewery, about three blocks distant, and there again assaulted her as they had in the park. The evidence • discloses that but a very short time elapsed between the occurrences in the park and those at the brewery, in fact Only the time required to travel from point to point and stop at the saloon to purchase the soda. After the last assault prosecutrix went to the corner of Cherokee and Jefferson streets and there met an offifeer to whom she made complaint concerning her mistreatment. While in his company she met another police officer who’ took her to the police station, and from there to the city dispensary where a physical examination was made. . In the presence of the police captain, certain other officers, and the defendant himself, prosecutrix, immediately after arriving at the police station, recited her *500story, as heretofore detailed, which was then and there denied by defendant.

The evidence further discloses that when the prosecutrix met the police officers her clothing was soiled and torn. The physician who made the examination testified that “the vagina was excorciated or reddened and irritated inside and around the edges and greatly relaxed; that her rectum was similarly affected, and that her clothing was soiled from vaginal discharge. ’ ’

On the part of defendant the testimony tends to prove thait the defendant was not with the prosecutrix on the occasion testified to, nor was he with her at all in the park or at the brewery. He denied all the statements of the prosecutrix, and offered evidence tending to establish that he was engaged in the performance of his regular duties as a bartender until 12:45 that night. He admitted that immediately after quitting work he saw the prosecutrix and walked with her to a saloon and there got a glass of soda, but denied entirely that he had committed any assault, or that any had been committed upon prosecutrix in his presence.

I. The judgment should be reversed, so asserts -defendant, because (1) the information charges no offense; the court (2) admitted improper evidence, (3) erred in its instructions to -the jury, (4) should have required the State to elect upon which charge of alleged assault it would stand; and (5) that the evidence is wholly insufficient to sustain the verdict.

crime ACI31 nst Nature, It is strongly urged and adroitly argued that the-laws of this State- do not make criminal the acts charged in the information, but we think otherwise and have heretofore so held. [State v. Wellman, 253 Mo. 302.] It would serve no useful purpose to go into the conflicting holdings of other jurisdictions as to whether the act here-*501charged was at common law included in the general terms ‘ ‘ crime against nature; ’ ’ because, even were the negative of this proposition conceded, it would avail defendant nothing in view of our amended statute. In the statutes of this State it is written:. “Every person who shall be convicted of the detestable and abominable crime against nature, committed with mankind or with beast, with the sexual organ or with the mouth, shall be punished,” etc.; the words in italics having been added by amendment in 1911. [Laws 1911, p. 198.] The Legislature surely meant something by this amendment, and, if so, it evidently was to include certain acts against nature which the general common law terms did not embrace, and the acts it had in mind, it designated. The method denounced by the amendment, and employed in this case, is as much against nature, in the sense of being unnatural and against the order of nature, as sodomy, buggery, or any other unnatural copulation. The original statute ¿ave no definition of the crime against nature, and it was unnecessary for the amendment, in order to embrace the act here charged, to more definitely define the act in contemplation than it did. As said in Honselman v. People, 168 Ill. l. c. 174, “The statute gives no definition of the crime, which the law, with due regard to the sentiments of decent humanity, has always treated as one not fit to be named,” and so with the amendment. Without lengthening the discussion of this loathsome subject, it is sufficient to say that the act here charged is within the statute, and that the information fully and sufficiently advised the defendant of the crime with which he was charged. [State v. Wellman, 253 Mo. 302; Means v. State, 125 Wis. 650; Honselman v. People, 168 Ill. 172; Kelly v. People, 192 Ill. 119.]

*502Efv|denace Kindred otfenses. *501/TL Defendant complains that, after the State had offered its evidence relative to the assault which

*502took place in Benton Park, it was not proper -¿o prove the second assault committed at the brewery, and that, after the introduction of the evidence of both assaults, the State should have been required to elect as to the one upon which it would plant itself. The authorities all agree that, as a general rule, evidence of other crimes is inadmissible upon trial of the one charged, but to this there are exceptions, and among these is the one of a collateral crime which has a logical connection with the crime directly involved, or is so linked with it as to show that it is a part of the continuous accomplishment of a fixed and common design. In the cases of State v. Schnettler, 181 Mo. 173, and State v. Spray, 174 Mo. 569, the authorities upon this subject are ably and exhaustively reviewed, and from them it is readily deducible that where two or more offenses are connected under such circumstances as together constitute but a single and continuous accomplishment of a common design, evidence of all is admissible, notwithstanding that in each case the party could be separately indicted and convicted. In the case of State v. Mathews, 98 Mo. l. c. 128, the facts disclosed that after the perpetration of the homicide, and after-’ the accused had left the scene some two hundred yards he shot at another person, and, in holding’ evidence of the second assault competent, the court said: • “The evidence was admissible. The defendant and his companions were going directly from the scene of the homicide, just perpetrated. Greene was going toward it. The defendant’s halting him was an‘act, the character of which not only illustrated the character of the principal act in the tragedy, as part of a system of criminal acts, but so intimately connected with it, as to make it a part of that very transaction, and to identify the defendant as an actor therein.” To the same effect is State v. McDonald, 67 Mo. 13; State v. Balch, *503136 Mo. l. c. 109; State v. Myers, 82 Mo. 558. This is in no degree in conflict with what is said in State v. Palmberg, 199 Mo. 233, and cases in line therewith. In those cases the proof of other and subsequent assaults was clearly inadmissible as having no logical connection with the crime under trial, ‘and were not a part of a continuous and single accomplishment. The evidence in this case is sufficient to establish a conspiracy on the part of the defendant and his two companions (State v. Sykes, 191 Mo. 62), and clearly discloses that all that was done both at the park and the brewery was but parts of a fixed, single and common design. It was one continuous transaction, and from the moment that prosecutrix was seized by defendant and her companion taken away by his confederates the girl was within the power and control of defendant, and he was continuously using her in the accomplishment of a single design. These various acts were committed, one after the other, .in almost immediate succession, and, no doubt, in pursuance of a common scheme and understanding on the part of defendant and his accomplices. It is our opinion that they were so closely connected and committed under such circumstances as to make evidence of the whole transaction competent, and that it was not error on the part of the court to overrule defendant’s motion to require the State to elect. ‘•

III. What is said in the preceding paragraph disposes of defendant’s objections to certain instructions which were given on the theory that the different acts testified to constituted but one continuous transaction.

instruction: Prosecutrix. Instruction numbered 1 defined the crime with which defendant was charged, and, among other things, told the jury that “it- is immaterial whether the persons so used or abused consented thereto or not.” We do not understand counsel to contend that the *504consent of the person so used would constitute any defense, and, of course, it would not; but he insists that this portion of the instruction was unnecessary, and, as given, erroneous, because, if the other person consented, she was an accomplice, in which event corroboration of her testimony was necessary. This assignment is ruled adversely to defendant, because (first) there is not in all this record any evidence tending to establish that the prosecutrix consented thereto, and corroboration was, therefore, unnecessary, and an instruction requiring it would have been improper; and (second) the motion for a new trial contains no specific assignment on this subject. [State v. Conway, 241 Mo. 271; State v. Horton, 247 Mo. l. c. 663; State v. Wellman, 253 Mo. l. c. 316.] (Third) This instruction merely defined the offense for which defendant was on trial, and while perhaps it was unnecessary in this case to instruct the jury that consent was no defense, it cannot be said that the instruction was erroneous, or that it could have resulted in prejudice to the defendant.

8ufflcien°y IV. It is finally insisted that the evidence upon which this conviction rests is “so incredible, improbable and contradictory, and so opposed to all human experience” that the verdict should not be permitted to stand. As said by this court in State v. Sechrist, 226 Mo. l. c. 582, “That the transcript presents a state of degradation that challenges credulity must be conceded, and yet our statutes on incest and rape attest that these crimes are within the experience of our courts and legislatures.” If the facts testified to by the prosecutrix are true, and in many respects she is corroborated by the testimony of disinterested persons, it cannot be said that the evidence is insufficient. The lawful triers of this issue have certified to us the truthfulness of her statements, and their verdict assessing punishment at *505only two and one-half years’ imprisonment, instead of showing passion and prejudice, evinces that mercy has tempered justice.

The judgment should he affirmed, and it is so ordered.

Paris, P. J., and Walker, J., concur.