222 S.W. 427 | Mo. | 1920
Lead Opinion
The defendant appeals from a conviction in the Circuit Court of Jackson County, on a charge of statutory rape, committed upon one Lucy Hare, a female child under the age of fifteen years.
Seay was fifty-nine years of age, a bachelor, and conducted a card-printing shop at No. 1120 Troost Avenue, *675 Kansas City. The shop was on the ground floor and contained two rooms — one in front where he transacted business, and one in the rear where he slept, and where, the State's evidence went to show, he maintained a cot on which the alleged offense was committed.
Lucy Hare was thirteen years of age and attended the Humboldt School. She, with other girls who attended that school, were frequenters of the defendant's shop. She was in the shop a number of times during a period extending from June, 1918, until December of that year. It was on one of these visits in June that the first criminal act was committed by the defendant against Lucy Hare. This recurred at intervals when she would visit the shop in company with another girl, named Virginia Turner. The last act of the kind described occurred about a week before Christmas in December, 1918. The incident is described by the prosecuting witness and by Virginia Turner who was present all the time.
The defendants endeavored to show that the arrangement of the shop was such that he could not have committed the offense in the manner detailed, by describing the interior of the back room of his shop. This evidence, however, was contradicted by the testimony of the State's witnesses who described the place as containing two bunks, one about seven feet above the floor, where he slept, and the other lower down, composed of boxes over which a quilt or something was spread.
I. The attorney for the defendant demurred to the evidence at the close of the State's evidence, and again at the close of all the evidence. It is claimed that the court erred in overruling these demurrers. In regard to the facts relating to the particular offense for which the State seeks a conviction the evidence of the prosecuting witness and of VirginiaDemurrer Turner was quite clear and entirely sufficient toto Evidence. submit the issue to the jury. The defendant, on cross-examination of the prosecuting witness, had her state that she suffered no pain at the time. This was *676 offset by the testimony of a physician, who examined the girl on the order of the court, and testified that she was a well developed girl for her age of thirteen years and that the hymen was broken at a much earlier period, not recently. The court properly overruled the demurrer to the evidence.
II. The prosecuting attorney, in his opening statement, related substantially what the evidence would be in relation to the different criminal acts committed by the defendant upon the prosecuting witness and the defendant's counsel thenElection. asked the court to have the State elect upon which particular offense the State would expect a conviction, since each distinct act was a separate crime. The court overruled the motion, but at the close of the State's case did require the State to elect. The prosecutor thereupon elected to demand a conviction for the offense committed about a week before Christmas in December, 1918. The rule in regard to requiring an election in such case is largely within the discretion of the trial court. It should be made as soon as the facts are sufficiently developed to warrant it. [State v. Hughes,
III. The defendant denied specifically and generally all the criminal acts charged against him and introduced a number of witnesses, who from the evidence appeared to be reputable citizens, to testify that he had a good reputation. It appears from intimations in the record that some time in February, 1919, the defendant was apprehended, and was then suspected of committing sundry crimes of the character charged against him in this case, against numerous girls, including the prosecuting witness. When the defendant's character witnesses were on the stand testifying to his good character the prosecuting attorney proceeded to cross-examine them in this manner: *677
"Q. (By Mr. CURTIN): If you had heard that this defendant was charged with the crime of rape upon a nine-year-old girl by the name of Mildred Roberts would you then say his reputation was good?"
Objection to this question was overruled and exception saved.
"The COURT: Answer the question, doctor.
"Read the question.
"(Last question asked by Mr. Curtin read to witness by the reporter).
"A. It is very difficult to answer that question. If it charged that? I would say that the charge is very bad for him.
"Q. (By Mr. CURTIN): Very bad for him? A. Yes, sir."
The prosecutor then asked this question:
"Q. (By Mr. CURTIN): If you had heard that this defendant was charged with committing rape on a girl eight years of age by the name of Alice Parrish, would you say that his reputation was good?"
Objection to this was overruled and the witness answered:
"A. I would say it is a very unfortunate charge."
A number of questions of that character were asked of several witnesses and answered over the objection and exception of the defendant, and of one witness the prosecutor asked this question:
"Q. Now, Mr. Fratcher, had you heard prior to the 27th day of February, 1919, this man was charged by eight or nine littlegirls of having had sexual intercourse with them, would you still say that his reputation for morality was good?"
Objection to which was overruled and exception saved.
When a defendant on trial charged with a crime introduces a witness to prove good character it is proper for the State to cross-examine such character witnesses for the purpose of testing their knowledge of the defendant's reputation, the sources of their information, and their credibility. Such cross-examination is largely *678
within the discretion of the trial court. [State v. Phillips, 233 Mo. l.c. 305; State v. Harris, 209 Mo. l.c. 443.] It is permissible to inquire of the character witnesses whether they have heard such and such rumors relating to the defendant; rumors of crimes or other acts which would reflect upon his character in order to determine upon what the witness bases his judgment as to the reputation of the defendant. [State v. Brown, 181 Mo. l.c. 213-14.] Such questions are improper unless such rumors are afloat to affect defendant's reputation. [State v. Parker,
Rumors affecting one's reputation is quite a different thing from proof of specific acts or crimes for which the defendant might be convicted. In this case the character witnesses were offered for the purpose of showing the defendant's reputation before he was charged with the crime for which he was on trial. The questions asked by the prosecuting attorney did not go to contradict any statement as to what his reputation was then. He didn't ask the witness if rumors were current, which they had heard concerning defendant's misconduct, because it appears there were no such rumors at the time. The questions were entirely argumentative, and called for opinions and conclusions. The witnesses could not have heard of the offenses named at the time to which the inquiry is directed and the prosecutor knew it. Under the pretext of testing the credibility and information of the witnesses he sought to bring before the jury the facts that the defendant had committed a *679
number of very serious and abominable crimes, for any one of which he could be convicted; crimes totally disconnected with the crime for which he was on trial. The question not only avoided any reference to the defendant's reputation as it was, but demanded an opinion of the witnesses on their assumed knowledge
of facts instead of reported crimes. This sort of cross-examination has been universally condemned. The prosecutor overstepped his privilege. [State v. Teeter,
A crime of the character of the one with which defendant is charged is so abhorrent that conviction is easy; in fact, the charge is almost equivalent to a conviction. So strong is the prejudice against a defendant in such case that the court must take every precaution to see that he obtains an impartial trial.
For the error committed by the trial court in allowing the cross-examination of defendant's character witnesses the judgment is reversed and the cause remanded.
Railey and Mozley, CC., concur.
Addendum
The foregoing opinion by WHITE, C., is adopted as the opinion of the court. All of the judges concur. *680
