130 S.W.2d 599 | Mo. | 1939
Lead Opinion
Alf Palmer appeals from a judgment imposing five years' imprisonment for the forcible ravishing of his step-daughter.
[1] Appellant says, but cites no authority, that a submissible case was not made. This is upon the theory the prosecutrix's narrative was denied by appellant and her testimony was uncorroborated. Her testimony was not wholly uncorroborated. It was credible, was not contradictory within itself, nor contrary to physical facts. Appellant's contention finds support in State v. Patrick (Banc),
Prosecutrix's mother died April 26, 1937. After her mother's death prosecutrix stayed with a relative until May 21, when she returned to appellant's home. Appellant's brief states prosecutrix's testimony was to the effect appellant "forcibly ravished her on the evening of June 9, 1937." She testified they were at home alone; that she begged, resisted and tried to fight appellant off until she was exhausted; that the act occurred; and that she made complaint at the first reasonable opportunity to her half-sister and another person. They denied this. Prosecutrix's mother's sister testified that prosecutrix made complaint to her when prosecutrix first came to her home a few weeks after the occurrence. This refutes appellant's points with respect to a case made (cases supra) and prejudice on the part of the jury (State v. Catron,
[2] Appellant's motion for new trial alleges error in the court's *1066
refusal to give his "cautionary" Instruction "E," telling the jury that if they found prosecutrix failed to make outcry or make complaint "at her first opportunity" such facts were "inconsistent with defendant's guilt" and rendered the charge "improbable." As we read the record an outcry would have served no purpose. Appellant does not undertake to justify Instruction "E." The only authorities cited in his brief bear on the duty of trial courts to give a correct instruction when a defendant presents an improperly worded instruction. He contends the court should have given a correct instruction with respect to prosecutrix's failure to make complaint. Instruction "E" was argumentative and tended to invade the province of the jury. It singled out specific testimony. While it did not tell the jury the testimony on prosecutrix's failure to make complaint was entitled to great or little weight, it argued the effect of a negative finding of this collateral factual issue upon the ultimate factual issue and tended to invade the province of the jury in ascribing to such a negative factual finding an inconsistency with and improbability of guilt. [State v. Shelby,
What was said in State v. Patrick (Banc),
The instant record does not call for a ruling on the necessity of a proper instruction on prosecutrix's failure to make complaint. As stated, instructions receiving approval are to the effect that prosecutrix's failure to make complaint is a circumstance for the consideration *1067
of the jury along with all the other evidence — a different principle of law from that involved in requested Instruction "E." The testimony to that effect, with all the evidence, was before the jury for their consideration; and to instruct the jury they may consider it appears to the writer to be somewhat of a work of supererogation. Furthermore, appellant's motion for new trial predicated error only on the refusal of Instruction "E" and nowhere made complaint of the court's refusal to specifically instruct that the jury could consider a failure to make complaint along with all the other evidence or that refused Instruction "E" called for such an instruction. Under Section 3735, Revised Statutes 1929 (Mo. Stat. Ann., p. 3275), trial courts are relieved from searching with lighted candle ex mero motu for error in criminal cases not specifically pointed out in an accused's motion for new trial. Issues first presented in appellant's brief upon appeal are not for review. [State v. Barbata,
Appellant directs us to no error of record proper, and our search has disclosed none.
The judgment must be affirmed. Cooley and Westhues, CC., concur.
Addendum
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.