220 Mo. 54 | Mo. | 1909
This is an appeal from the circuit court of Pemiscot county. Defendant was charged, by an indictment found by the grand jury of said county, with having, on the---day of December, 1907, committed upon one Frances McCants, a female
This indictment was filed on the 2nd day of March, 1907. Defendant was tried at the November term, 1907, and a mistrial resulted. He was again put upon trial at the February term, 1908. The latter trial resulted in a verdict of guilty, and the assessment against him of the penalty of imprisonment in the penitentiary for a term of thirty years. From this verdict and the resulting judgment and sentence thereon, the defendant, after his motions for a new trial and in arrest were overruled, took and now prosecutes this appeal. The facts are substantially as follows:
Defendant, with his mother and one William Rush-ton, were at all the times mentioned, engaged in a small mercantile business and in operating a restaurant upon the Main street in Caruthersville. All of these persons, with the prosecuting witness and one Lucy Logs ton, occupied as a sleeping apartment a room in the rear of this little store.
The prosecuting witness at the time of the perpetration of the alleged rape was under the age of consent, being of about the age of ten or eleven years. She was well grown for her age, and, as her testimony abundantly indicates, was, her condition in life and environment considered, of rather unusual intelligence. She had been left by her father with defendant and defendant’s wife and mother, in order that she might attend school in town. Prosecutrix had been thus living with defendant and attending school for about one year at the time of the commission of the alleged rape.
On the night of December 1, 1906, the father of the prosecutrix, one Frank McCants, was in town, and about 9 o’clock in the evening came to the place of business of the defendant and slept there all night. McCants was at this time somewhat intoxicated, or, as one witness put it, “he had a dram.”
Upon observing the physical impairment of prosecutrix’s gait, Mrs. Newcomb asked her if there was not something the matter with her. She at first made strong denial, but upon being most urgently pressed by Mrs. Newcomb, finally admitted that she was sore, and that she had been getting sore, as she expressed it, ever since her father had slept with her. Mrs. Newcomb thereupon examined the prosecutrix and found the private parts of the latter in such condition, as to the mind of the witness, called for medical treatment. Mrs. Newcomb sent for a physician, Dr. Phipps, to whom she related prosecutrix’s condition and requested him to make an examination of her. This Dr. Phipps did, calling to his assistance, after a partial or cursory examination, another physician, Dr. Crowe. Both of these physicians testified upon the trial, and stated in their testimony that they found an enlargement, and an inflammation of the private parts of the prosecutrix, and that such inflammation was caused, in their opinion, from gonorrhea. Dr. Crowe was permitted to say that such enlargement was produced, in his opinion, by the commission upon the prosecutrix of a rape. No examination by means of a miscroscope was made, either of the prosecuting witness or of the defendant, or said Frank McCants, although every physician who testified admitted tha,t
Upon the confession of the prosecutrix to Mrs. Newcomb that her condition was caused by her father, Frank McCants, a warrant was procured for McCants, complaint therefor being made and sworn to by said Rushton, the partner of defendant, and a witness for the State, and the latter’s mother.
Upon being arrested on this warrant on the 12th day of December, 1906, said McCants admitted to the sheriff who arrested him, and to the then prosecuting attorney that he (McCants) had had the gonorrhea about two weeks before his arrest but that he was at the time- of his arrest, well thereof.
Said McCants was given a preliminary hearing about the 21st day of December, 1906, upon the charge of having committed the rape in question upon the prosecutrix, his daughter. Upon a full hearing, he was bound over to await the filing of an information against him, without bail being allowed him.
Upon this trial his daughter, the prosecuting witness, was sworn and testified. In her testimony, given under oath, she charged her father alone with having violated her, and as being wholly responsible for her condition, and most bitterly denied that the defendant had ever at any time mistreated, wronged or violated her person in any wise.
Prior to prosecutrix being sworn as a witness against her father, and before die testified in the preliminary trial of him as aforesaid, she was taken privately into the office of the then prosecuting attorney,
Shortly after the father of prosecutrix was committed to jail, upon this charge, she was taken from the custody of the mother of defendant and put in the charge of the sister of said McCants. This taking away of the prosecutrix occurred some few days after Christmas, 1906, or about four weeks after the alleged offense was committed.
After being committed to the care of her aunt, the prosecutrix was taken to Steele, a town some fifteen miles from Caruthersville. Here she persisted in accusing her father and denying the guilt of the defendant for about a week, or until the first days of January, 1907, although she was daily repeatedly pressed with interrogations by one J. R. Jenkins, an extremely officious friend and partisan of said McCants — and one, as he himself ingenuously admits, extremely unfriendly to defendant. Said Jenkins, having, as he expresses it, endeavored for several days to get the prosecutrix to tell the truth, and being in his own opinion, unable to prevail upon her to do so, finally spoke to the uncle and aunt of prosecutrix’s attitude, advising them of the persistence with which she clung to her story accusing her father, and confidently confided to them his opinion that “if something was not done she was going to break her daddy’s neck.” ■While not in evidence, except by inference, this cogent appeal seems to have borne fruit. For, subsequent to this communication and upon the fourth visit of Jen
Thereupon, at the February term following, the said Frank McCants was released1 from custody, a nolle prosequi being entered to the information which had been preferred against him by the prosecuting attorney, charging him with the crime. In March, 1907, the defendant was indicted for the offense and this prosecution followed.
Upon the trial of defendant it was shown that he had for a few nights in the latter days of November, 1906, slept with the prosecuting witness in the common sleeping apartment; that no reprehensible conduct on defendant’s part while thus sleeping, was shown, notwithstanding at least three other persons also occupied this room and slept within a foot or two of defendant.
Upon the trial of defendant a sharp, contradiction of fact arose in regard to facts below noticed, the prosecuting witness testifying that defendant, and not her father, had violated her, and that her former story accusing her father had been induced by threats made by Mrs. S. A. Newcomb, the mother of defendant. These facts the defendant and his mother denied. The State insisted, and the defendant denied, that the defendant had had, about the time cf the alleged rape, the disease of gonorrhea. The defense insisted and the State denied that said McCants had had the gonorrhea about the time of the alleged rape.
These contradictions, being interpolated and woven into the case above set out, either pro or con, will constitute a fair statement of the facts of the case.
The testimony in this case presents, such an exceptional state of facts that it'calls for the most se
I. The first assignment of error is that the court erred in permitting the different witnesses for the State to detail at length conversations and statements of Mrs. Newcomb, the mother of the defendant, made out of the presence of the defendant; nor did it stop at this, but her acts, demeanor and emotions were brought before the jury. While in our opinion there was nothing in her conduct incompatible with a sincere desire to see the wrong done to the little girl thoroughly investigated and the guilty party punished, and nothing to indicate on her part a desire or purpose to smother a prosecution, it is evident that a contrary construction was sought to be placed upon her conduct and the defendant made to suffer therefrom.
The law is so well settled that the defendant cannot be bound by statements and acts of third parties made out of his presence that it needs no citation to establish it, but our own reports abound in decisions condemning the admission of such testimony. [State v. Jaeger, 66 Mo. l. c. 180; State v. Rothschild, 68 Mo. 52; State v. Patrick, 107 Mo. l. c. 152.]
Mrs. Newcomb was in no sense a co-conspirator. There was nothing in the evidence tending even re-' motely to establish that this lady was a party to the undoing of this child anld1 by all the rules of testimony what Mrs. Newcomb said or did after the consummation of the crime could not be competent against defendant. Neither was this a case of subornation of perjury or compounding a felouy or bribery of a witness. Indeed, fairly construed, the acts of Mrs. New-comb were just the contrary in every respect and such' only as an innocent, sympathizing and law-abiding
II. Equally grievous and hurtful, if not more so, was the action of the court in permitting Dr. Crowe to detail to the jury what he (Crowe) said to defendant while he was examining him under the order of the justice pending the preliminary trial of Frank McCants for this identical offense. Whatever may be said1 of the legality of the examination, which will be considered further on, there can be no doubt of the error in permitting the doctor to detail what he said to the defendant during said examination. [State v. Foley, 144 Mo. 600.]
III. As to the competency of the witness Jenkins to detail what the prosecuting witness said to him a. month or so after the crime had1 been committed, clearly it was inadmissible upon every consideration of justice and right as original evidence, but was it permissible on the theory that it was elicited on cross-examination? We think not. The defendant had the right to show by way of impeachment that not until a month had elapsed did the prosecutrix charge defendant with this crime, and after she had testified in the preliminary trial of McCants that the latter was the guilty party. It was competent to show the circumstances and inducements held out to the little girl to get her to change her sworn testimony and charge
IV. "We are now brought to the most important question in this record. The defendant, while in custody and charged with this offense and when he was without counsel, was ordered by the justice of the peace, at the demand of the prosecuting attorney, to submit to a physical examination of his privates by a physician. He was taken into a room of the courthouse and in the presence of the sheriff was examined by Dr. Crowe, both of whom testified in this cause as to the result of that examination and as to what they saw during that examination and what they said to him.
Counsel for defendant insist this was flagrant error and was a conspicuous violation of the constitutional right of the defendant to be exempt from testifying against himself. [Constitution of Missouri, sec. 23, art. 2.]
Some effort was made to show that defendant voluntarily consented to this violation of his person, but we think it is apparent that he simply submitted because he thought he was compelled to do so. When it is considered that he was at the time in custody for this very crime; that the prosecuting attorney demanded an order from the justice for this examina
The salutary provision of section 2215, Revised Statutes 1899, would seem to have been overlooked. We think the circuit court should have excluded all this testimony of Dr. Crowe and the sheriff as to this examination. We had occasion to examine the law on this subject in State v. Young, 119 Mo. 495, and the authorities are collated there. The facts of this case bring it clearly within the reasoning of that case and upon the authority of that decision and those cited and approved therein, this testimony was incompetent and inadmissible and violative of defendant’s constitutional right not to be compelled to testify against himself. [See, also, State v. Height, 117 Iowa 650.]
V. • The testimony of Dr. Swearingen to the effect that Frank McCants had been, about four months prior to the commission of this offense, afflicted with a venereal disease but had recovered therefrom, was .entirely too remote and should have been excluded, especially as the sheriff and the former prosecuting attorney both testified that McCants had admitted to them he was thus afflicted on the very day that this crime was alleged to have been committed.
VI. As to instruction No. 5, we see no reversible error in giving it, though it would be preferable to tell the jury they may take into consideration the fact that a defendant or his wife is testifying in his own or
VII. As the judgment must be reversed for the errors already noted, it need' only be said that the prosecuting attorney had no right to state to the jury that the defendant when he took the witness-stand did not deny what McCants had said. We cannot too strongly condemn this tendency of prosecuting officers to violate the positive command of the statute not to refer to the failure of a, defendant to testify* [State v. Snyder, 182 Mo. l. c. 523.]
For the errors noted the judgment must be and is reversed. The testimony impresses us that this is a cause in which1 the court cannot proceed too cautiously as against this defendant. The testimony of the prosecutrix in this case, in view of her previous testimony, is, to say the least, far from convincing us the defendant should be deprived of his liberty unless far more satisfactory evidence can be produced against him.
Judgment reversed and cause remanded for a new trial.
