250 Mo. 293 | Mo. | 1913
Defendant was tried in the circuit court of Shannon county on the 9th day of January, 1912, upon the charge of rape. The triers of fact found him guilty thereof and assessed his punishment at imprisonment in the penitentiary for a term of five years. Front the sentence and judgment of the. court imposed in pursuance of the jury’s verdict, he has, after the usual motions for a new trial and in arrest of judgment, appealed to this court.
The information upon which this prosecution is based is, caption omitted, as follows:
“G. S. Sizemore, prosecuting attorney within and for the county of Shannon and State of Missouri, under his oath of office and upon the information of the affidavit of Dorothy Benson herein filed, informs the court that Ed Lawhorn on or about the 27th day of August, 1910, at the said county of Shannon, State, of Missouri, then and there in and upon one Dorothy Benson, unlawfully, violently and feloniously did make an assault, and her the said Dorothy Benson, then and there, unlawfully, forcibly and against her .will, feloniously did rape, ravish and carnally know; against the peace and dignity of the State. ’ ’
This information was not verified by the prosecuting attorney, though, as appears from the allegations therein, it was based upon a complaint, duly verified, by the prosecutrix and filed with one H. C. Meade, a justice of the peace of Shannon county. It appears that upon the filing of this complaint with the said justice of the peace a warrant was duly issued, and'after the proper procedure pursuant to statute, a preliminary trial was accorded defendant and he was held on bail to await the action of the grand jury, or the filing against
The facts shown upon the trial on the part of the State are substantially as follows:
On August 27,1910, some sort of a picrnc occurred at West Eminence, in Shannon county. Present at this picnic were Dorothy Benson* the prosecutrix; Ed Lawhorn, the defendant; Jesse Benson, the father of prosecutrix; Joe Mahan, her uncle; Mrs. Deacon, an acquaintance of prosecutrix; Cynthia McDowell, also an acquaintance of prosecutrix; and others, but how many others, or how numerous were the others, does not appear from the record. Defendant Lawhorn was at work in some sort of a stand, then being operated upon the picnic grounds by one Daniel Emmons. Sometime during the day prosecutrix went to the stand where defendant was at work and had some conversation with him in the presence of her friend, CyntMa McDowell. Prosecutrix says that defendant inquired of-her how long she had been there, and whether or not she would be back again that night, and that he “set up the lemonade.” Defendant’s statement of this conversation differs from that of prosecutrix, but neither of them is corroborated, as one of them might well have
After prosecutrix’s father was advised by her of the alleged acts of defendant, he went to defendant and asked him about what had occurred. Defendant denied knowing anything about it, or of having anything to do with prosecutrix.
During the examination of prosecutrix’s father upon the trial he was asked this question: “Make a statement to the jury as to what she was doing and what she said to you at that time?” (That is, at the time following prosecutrix’s conversation with Mrs. Deacon and when she was telling her father of the alleged acts of the defendant). Objected to by the defendant as hearsay; which objection was by the court overruled, to which mling of the court the defendant excepted at the time. Thereupon the father of prosecutrix proceeded to detail not only what the latter had said to him, but what Mrs. Deacon had said to him in a con
There is some testimony in the record as to the condition of the clothing of defendant and to the effect that the shirt which it is'said he wore upon the day in question, but ownership of which is not as definitely shown as it might be, had a spot of blood on that part of it, called by the witnesses “the lower front part of the tail.”
Defendant testifying for himself admits passing along the road following the prosecutrix; admits passing her while she was talking to her uncle Joe Mahan; admits having a conversation with her in the neighborhood of where she says the rape occurred, but denies any sexual intercourse with her or any attempt to have sexual intercourse with her on this occasion. He says that he followed her to the place in question at her own request and suggestion and because she had told him that she had something to tell him, but that she could not tell him at the stand where he was at work, and that he then proposed that they walk up the road together, and that while prosecutrix insisted that that would not do, that someone would tell it, he then asked her to go on and that he would come after her. That she thereupon started, defendant going one way and prosecutrix the other, but that he met her by another stand returning, and that she thereupon said that her uncle was up there. That defendant said to her that he would “set them up,” which he did, and go on back to work, but that prosecutrix still insisted that she had something she desired to tell him; that, he, defendant, then told her to go on, that he didn’t care for her uncle, andi that on the way up to the alleged scene of the trouble he passed her uncle and caught up a short distance beyond with prosecutrix, who asked him to go on up further with her as she didn’t want anyone to see her talking to him, and that not having time to do so, but being
On the day following the alleged act prosecutrix went with her father and others to the alleged scene of the rape where the weeds were observed to be trampled down, and whidh looked, as the witnesses say, “like it might have been used,” and where the hat pm of prosecutrix was found.
On the day in question prosecutrix had reached the picMe grounds sometime before her father and mother got there, and it seems she did not know at the time of her conversation with Mrs. Deacon that her parents had reached the ground, and so stated to Mrs. Deacon, who advised her that during her absence up the road her parents had reached the grounds.
The above statement of facts will be sufficient, in the view we take of this case, to comply with the statutory requirements provided in this behalf.
The statute as to the verification of informations which was in force at the time of the filing of the one complained of herein, is as follows:
‘ ‘ Sec. 5057. Informations may be filed by the prosecuting attorney as informant during term time, or with the clerk in vacation, of the court having jurisdiction of the offense specified therein. All informations shall be signed by the prosecuting attorney and be verified by his oath or by the oath of some person competent to testify as a witness in the case, or be supported by the affidavit of such person, which shall be filed with the Mformation; the verification by the prosecuting attorney may be upon information and belief. The names*302 of the witnesses for the prosecution must be indorsed on the information, in like manner and subject to the same restrictions as required in case of indictments.”
It is evident from the facts as we have set them forth that neither of the three ways provided by the section above quoted, by which an information may be verified, was used. But it is strenuously insisted by the State that the information herein was properly and sufficiently supported by affidavit, for the reason that there had been theretofore filed with the justice of the peace a complaint, duly verified, by the prosecutrix; that this complaint, as a paper in the case, had been by the justice of the peace lodged with the clerk of the circuit court as a part of the files accompanying the justice’s transcript of his proceedings on the preliminary hearing. The State insists that this fact is a sufficient compliance with the requirements of section 5057, supra, and that it was not necessary that the information be verified by the oath of the prosecuting attorney, or by the oath of some person competent to testify as a witness in the case, or that it be supported by the affidavit of such person filed with the information.
It is not necessary here to go at length into the legal history of the constitutional amendment and of the statutes in aid thereof, by which prosecutions for felonies were permitted to be instituted by informations in lieu of or coordinately with indictments. Suffice it to say that the Constitution was changed in this behalf in November, 1900', andl that amendments to our statutes of criminal procedure in consonance with the change in the organic law, were passed in 1901, at which time section 2478, Revised Statutes 1899, was amended to read as follows:.
“Sec. 5058. When any person has knowledge of the commission of a crime, he may make his affidavit before any person authorized to administer oaths, setting forth the offense and the person or persons charged therewith, and file the same .with the clerk of*303 the court having jurisdiction of the offense, for the use of the prosecuting attorney, or deposit it with the prosecuting attorney furnishing also the names of the witnesses for the prosecution; and it shall be the duty of the prosecuting attorney to file an information, as soon as practicable, upon said affidavit, as directed in the next preceding section. ’ ’
Long prior to the constitutional amendment and the amending of the above section there were in existence statutes providing for the making of complaints in writing before any magistrate, setting forth the fact that a felony had been committed, averring the name of the one charged with the commission thereof, and making it the duty of the magistrate to issue his warrant for the apprehension of the alleged doer of the felony, and providing for the examination of witnesses; and if upon such examination it appears that a felony had been committed, and that there ,was probable cause to believe the prisoner guilty, the magistrate was required' to bind the prisoner over in suitable bond, if the offense be bailable, and if not bailable to commit the prisoner to jail until an indictment could be preferred by a grand jury. In other words, these provisions constituted the legal machinery by which arrests, preliminary examinations, commitments or discharges of persons charged with felonies were handled and disposed of. The complaint in writing was required to be verified.
In the instant case this is precisely what was done. A verified complaint was filed by the prosecutrix with Meade, the justice of the peace; a preliminary hearing was had and the justice deeming that a felony had been committed, and that there was probable cause to believe the defendant guilty thereof, the defendant was bound over to await the action of a grand jury, ior the filing of an information. Nothing was done in the case, nor were any papers filed, or affidavits filed, which were not required in a preliminary examination for many years
As stated, three methods of verification were provided for by section.5057, supra: (1) The information might be verified by the oath of the prosecuting attorney; (2) such information might be verified by the oath of some person competent to testify as a witness in the' case by appending to, o,r indorsing on, the information such oath; or. (3) it might be supported by the affidavit of some person competent to testify in the case, which affidavit might be contained on some separate and extraneous paper, but which must be filed .with the information. By a reference to section 5058, supra, it will'be seen that the affidavit required by subdivision three noted above, could be made before any person authorized to administer oaths, and the same could be filed with the clerk of the court having jurisdiction of the offense, or it might be deposited with the prosecuting attorney to be filed by him, with the information, when he should thereafter file such information. We. are not holding that when such affidavit was filed by the competent witness provided for in section 5057, supra, it was necessary to file the same with the clerk at the moment of filing the information. But all that is required is that such supporting affidavit when filed with the clerk of the court having jurisdiction of the offense may be filed with such clerk at any time prior to the filing of the information, and that so far as this affidavit is concerned, if the same be filed at or before the filing of the information by the prosecuting attorney, this is a sufficient compliance with the law. [State v. Coleman, 186 Mo. l. c. 166.] But none of the several methods above pointed out as being sufficient was adopted or used in the case at bar. Here there was
In order to agree in this case with the contentions of the State we are required to hold that the verified complaint filed by the prosecuting witness with the justice of the peace could serve both as a verification for the complaint and as a verification for the information. Since the charge in this case involved as. a maximum punishment the assessment by the jury, if they saw fit, of the punishment at death, it was necessary under the statute to allow a preliminary hearing to defendant. It was entirely within the discretion of the prosecuting attorney to proceed for a lower cognate offense, or if he were so advised upon an examination of the testimony, not to proceed at all. Suppose that upon an examination of the testimony the prosecuting attorney had seen
II. The conclusions which we have reached above must result in a reversal of this case, but as the same may be retried upon this or some other cognate charge, it may be well to say that in olir view the admission, over objections of defendant, of the testimony of Jesse Benson, as to the details of the alleged rape committed upon prosecutrix by defendant, constitutes error. That this is so, we take it is now and has long been the well-settled law in this State. [State v. Bateman, 198 Mo. l. c. 221; State v. Jones, 61 Mo. 232; 3 Russell on Crimes, 232; 23 Am. & Eng. Ency. Law (2 Ed.), 874.] 'There are, we concede, some exceptions to this general rule, as for example, where a defendant testifies to the fact of criminal connection with the prosecuting witness, and sometimes where the court withdrew the "hurtful testimony from the consideration of the jury; but none of the exceptions known to us is present in the case at bar. Upon a retrial of this case, if such retrial shall be had, the prosecuting attorney should not "be permitted to elicit from any witness the details of the .alleged rape as related by her to such other witness, un
It follows from what has been said that this case should he reversed and remanded for a new trial, if the State is so advisedand it is so ordered.