State v. Burgess

168 S.W. 740, 259 Mo. 383, 1914 Mo. LEXIS 85

• Court: Supreme Court of Missouri
• Decided: June 23, 1914
• Status: Published

Opinion

BROWN, P. J.

Convicted of rape and his punishment fixed at five years in the penitentiary, defendant appeals.

The information charges defendant with committing the crime of rape upon one Ivena Morris in Dunklin county, on June 7, 1912.

The evidence of the prosecuting witness tends to prove that defendant forced her to submit to sexual intercourse with him by pushing her onto a bed, holding her hands and threatening to slap her. Prosecutrix is a sixteen-year-old girl whose mind is, to some extent, impaired. She was making her home with defendant and his wife on a farm at the date of the alleged offense, the county paying $4 per month for keeping her. She was also working some as a house-servant to help pay her way.

The defendant and his wife spent the night preceding the alleged crime at the home of his mother-in-law who was very ill. On the following morning defendant returned home a short .time before his wife.

Prosecutrix testified that defendant on returning home committed the crime before recited; that defendant’s wife returned a few minutes later, and, upon making inquiry about the bed being disarranged, prosecutrix told her that defendant had ravished her.

Mrs. Burgess, the wife of defendant, testified that when prosecutrix told her of the misconduct of her husband she became angry, and, taking the prosecutrix with her, they visited the field where defendant was plowing, and she asked prosecutrix to repeat the charge to her husband. This prosecutrix would not do. The wife thereupon told defendant of the crime with which prosecutrix had charged him. Defendant denied the charge and accused prosecutrix of lying, and according to the testimony of defendant and his wife, prosecutrix admitted that what she had told was false.

An hour or so later the defendant returned to his house and told prosecutrix that she must leave — that he would not allow her to stay at his home any longer. The prosecutrix did leave the same forenoon. Defendant’s wife on the same day returned to the home of her sick mother, where she remained two days.

The prosecutrix visited the homes of three of defendant’s neighbors (Mrs. Hankins, Mrs. Johnson and Mrs. Jones) on the day of the alleged crime. To these neighbors she stated that defendant and his wife had separated, and, upon being closely interrogated by said neighbors, stated that defendant had had sexual intercourse with her. To Mrs. Johnson, one of the three, she stated the details of the alleged forcible defilement.

The defendant denied having had sexual intercourse with prosecutrix, and sought to discredit her evidence by statements alleged to have been made by her to others to the effect that defendant did not have intercourse with her; and by statements elicited from prosecutrix on cross-examination to the effect that she had not sustained sexual relations with anyone before she was ravished; that the assault had not caused her any pain, and that she did not become angry with defendant until he had ordered her to leave his house.

Such other points in the evidence as are necessary to a full understanding of the issues presented will be noted in connection with the conclusions we have reached.

Defendant has assigned more than twenty alleged errors in his motion for new trial and brief. We will consider such of them as we deem worthy of special attention.

Leading: Questions: Remarks of Court. I. Defendant’s first assignment is that the court erred in permitting the State to ask the prosecutrix leading questions; and with this assignment comes another, that the trial court made a remark m the presence of the jury which prejudiced their minds against defendant.

During the direct examination of prosecutrix the following matters occurred:

“Q. While you. were looking for this pattern did anybody come into the room where you were? A» Yes, .sir, George.

“Q. Did he shut the door?

“Mr. Tribble: We object to that as leading.

“Q. Can you go on from there and tell what George Burgess said to you? A. No, sir.

“Q. Tell those men over there what George said to you. A. (Crying) I hate to.

“Q. You mean you are ashamed to? A. Yes, sir.

“Q. Did he take hold of you in that room? A. No, sir.

“Q. Can you tell the jury what he asked you? A. No, sir..

“Q. Is it because you are ashamed to? A. Yes, sir.

“Mr. Tribble: We object to these leading questions. She has already told Mr. Bradley about it and she can certainly and ought to tell it again.

“Mr. Bradley: She has said that she was ashamed to tell it.

“The Court. Mr. Tribble, there is a vast difference in telling such thing to just one person and getting on that witness stand before a room full of people. In some States in trials of this kind everybody is excluded excepting the parties interested, and this girl is entitled to as much consideration as if she had on a tliousand-dollar dress. Go ahead, Mr. Bradley, and do the best you can.

“Mr. Tribble:- We except to the remarks of the court. We are objecting to the leading character of the question, and agree that she is entitled to as much consideration as anyone else. . . .

“Q. Did Burgess push you over on that bed? A. Yes, sir.

“Mr. Tribble: We object to that because it is leading.

“The Court: Overruled.

“Mr. Tribble: We except. . . .

“Q. Do you know what sexual intercourse means; you know what that means? A. No, sir.

“Q. Did this man do business with you there? A. Yes, sir. . . .

“ Q. What was said to him by you about his wife ? What did you say to him about his wife coming while he was on you? A. I told him he had better get up, that I seen Dolly coming, and he said, ‘I don’t care if she is,’ and so when Dolly got pretty close to the house he got up.

“Q. Did you see Dolly coming yourself? A. Yes, sir.”

In considering the admissibility of the leading questions which the court permitted the prosecuting attorney to propound, it is necessary to keep in mind the mental condition of the prosecutrix. She testified that she had attended school; that the last books she studied were a fourth reader and an arithmetic. Many of the witnesses testified that she had been a person of weak mind since she was a year old. A physician gave it as his opinion that her mental development was only about fifty per cent normal — that she would 'not be likely to know that it was wrong to have sexual intercourse, and would probably not understand the nature and consequences of giving false testimony in a trial. Many of her answers indicate that she is a person of average intelligence for her age.

Under this showing, and without knowing the appearance or physical demeanor of witness while testifying, we are constrained to hold that the court did not err in permitting the prosecutor to ask the leading questions hereinbefore recited. A liberal discretion is allowed to the trial court in such matters. [State v. Bateman, 198 Mo. 212; State v. Whalen, 148 Mo. 286.]

However, we are not able to lend our endorsement to the remark of the court by which defendant’s attorney was reprimanded, without cause, for merely objecting to leading questions. In making his objections he was acting in a perfectly natural and legitimate manner. The remark complained of was calculated to lead the jury, to believe that the court thought defendant to be guilty, and that his attorney was wrongfully trying to suppress the truth.

It is not the proper function of a trial judge to act as prosecutor, or even assistant prosecutor—he should, as far as possible, refrain from making remarks which may lead the jury to understand upon which side of the case his sympathies fall—he should conduct himself as an impartial umpire in the legal struggle between the State and defendant. While condemning the improper remark of the trial court, we are not holding that this alone would be sufficient to work a reversal if the record were otherwise free from error.

Order of Trial. II. A further insistence of defendant is that error was committed in permitting the prosecutrix, on her direct examination, to deny that she had made statements to other persons to the effect that defendant did not ravisn her—that he tried to do so, but did not succeed. It was also assigned as error that prosecutrix was allowed to testify that she made complaint of her mistreatment to other parties on the same day she was ravished. It was certainly at variance with the order of proof designated in section 5231, Revised Statutes 1909, to permit rebuttal testimony to come in before the defendant had offered any evidence. Under the facts of this case it was harmful to defendant to permit prosecutrix to testify that she had told Mrs. Hankins, Mrs. Jones and Mrs. Johnson that she had been ravished, for the reason that when those same witnesses were introduced they did not testify to facts which amounted to a complaint.

The evidence of all the witnesses last named is to the effect that prosecutrix merely told them that defendant and his wife had separated over her (prosecutrix). The alleged fact that a crime had been committed by defendant was only ascertained by the witnesses by the diligent application of interrogatories to prosecutrix. Information thus obtained does not amount to a complaint of having been ravished within the contemplation of the law. In 33 Cyc. 1467, the doctrine is announced as follows: “As a rule statements made in answer to questions or otherwise involuntarily elicited do not constitute such complaint as is admissible under the rules above stated.” See, also, State v. Pollard, 174 Mo. 607, l. c. 616. By allowing prosecutrix to testify that she did make complaint to those witnesses that she had been ravished, when she had not in fact voluntarily made any complaint, was allowing her to corroborate her own evidence as to the fact that a crime had been committed — a thing which clearly ought not to have been permitted. Upon a retrial of the cause (if the State elects to re-try) the court should require the proof that a complaint was made by prosecutrix (if she made one) to be established by the evidence of those persons to whom the complaint was made.

Corroboration. III. A further contention of defendant is that the court, over defendant’s objection and exception, permitted the prosecuting attorney to prove by witness Lora Johnson, on her direct exam in ation, the specific acts of defendant which prosecutrix related to her as constituting the offense of rape. The State was entitled to prove by Mrs. Johnson that prosecutrix made complaint to her that she had been ravished, but as that witness was speaking only from hearsay, she should not, upon her direct examination, have been permitted to give the details of her conversation with prosecutrix. [State v. Bateman, 198 Mo. 212; State v. Lawhorn, 250 Mo. l. c. 306.]

In the instant case the witness Johnson, whose intellect was not impaired, gave evidence to the effect that prosecutrix made to her (Johnson) about the same statements which prosecutrix testified to on the trial of the cause. This evidence also came in response to leading questions which suggested, in the plainest manner, the answers desired. To permit a party to corroborate a witness by proof that on some other occasion the witness made the same statements to another party which he or she has testified to upon the trial, would set up a new and dangerous method of corroboration.

Where a witness has made statements out of court which are in conflict with his evidence as given upon a trial, such conflicting statements may be shown to discredit the witness; but there is no rule that permits the corroboration of a witness by proof that he has made the same statements to different persons. If such a practice as the State adopted in this case were permitted, an untruthful witness could then corroborate’ himself as to a falsehood by first relating the falsehood to other parties, and then, after he has sworn to the falsehood, introduce such other parties to show that he has theretofore made the same statements to them. Of course, upon the coming in.of evidence that a witness has made statements which conflict with his sworn testimony, other evidence may be introduced which tends to prove that no such conflicting statements were made.

In the Bateman case it was held that the admission of the class of evidence complained of was not reversible error where the defendant admitted the act of sexual intercourse with prosecutrix; but the defendant here makes no such admission.

The statements of prosecutrix relating to the details of the alleged crime made to Mrs. Johnson some twelve hours after the offense was committed (if committed) were not made in the presence of defendant, and the act of the court in permitting Mrs. Johnson to give the details of such conversation as part of her direct examination constituted reversible error.

Complaint. IV. The trial court and the prosecuting attorney seem to have deemed it absolutely necessary to prove that prosecutrix' made a complaint to gomeoIL6 0f the fact that she had been ravished; otherwise a conviction could not be obtained. Such is not the law. A voluntary complaint of prosecutrix is no element of the crime, but only tends to corroborate her evidence where she testifies to facts which tend to prove that she was ravished. [State v. Miller, 191 Mo. l. c. 612; State v. Marcks, 140 Mo. 656.] If the prosecuting witness is so feeble-minded that she did not know that it was wrong for the defendant to have sexual intercourse with her, then she will not be required to make either outcry or complaint; and a conviction may be sustained without any proof that a complaint was made by her to anyone.

The law relating to rape committed upon an insane woman was correctly announced by the trial court in its instruction number 3, which reads as follows:

“The court instructs the jury that if you believe and find from the evidence that the defendant, at and in the county of Dunklin, and State of Missouri, at any time before the filing of this information, did wilfully and feloniously have sexual intercourse with one Ivena Morris, and if you further believe and find from the evidence that at the time of such intercourse, if you believe it was had, the said Ivena Morris was a person of unsound mind and of such weak intellect and intelligence that she could not and did not know or comprehend the nature and consequence of such an act, and could not understand right from wrong, you will find the defendant guilty of rape, and assess his punishment at death or imprisonment in the penitentiary for a term of not less than five years.” [State v. Williams, 149 Mo. 496; 33 Cyc. 1426.]

Examination of Defendant’s Wife. V. The cross-examination of defendant’s wife was allowed to assume undue bounds. She was not only examined rigidly as to the alleged separation of herself from defendant, but was refibred to detail the fact that she had heard a report to the effect that her husband had sustained illicit sexual relations with one Eva Davidson before his marriage to witness. This evidence was not admissible. The witness had not been interrogated regarding this report during her direct examination (Sec. 5242, R. S. 1909), and defendant’s reputation cannot be attacked by proof of specific immoral acts through a witness who has not testified to his good character. [State v. McDonough, 232 Mo. 219, l. c. 234.] The defendant had testified in his own behalf, and if his general reputation was bad he could have been impeached or discredited by calling some of his neighbors who had heard of his immoral acts. [State v. Phillips, 233 Mo. 299.] It was not permissible to establish his bad repu.tati.on by an improper examination of his wife.

In the trial of the cause the prosecuting attorney seems to have thought the evidence of prosecutrix needed corroboration, and that if he could prove defendant’s wife left him about the time it is charged that he committed the crime for which he was then on trial, or if it could be proven that defendant’s wife was jealous of him during any part of their marital life, this would furnish the desired corroboration. The State introduced pages of evidence for the sole purpose of showing that a separation did take place. While some of this evidence was not objected to in a proper manner, and is not before us for review, I feel constrained to call attention to its incompetency now, to the end that the case may be retried upon proper evidence.

The learned Attorney-Greneral admits that evidence tending to show that defendant’s wife left him was' immaterial, but claims that such evidence was harmless. We do not concur in this view. If defendant’s wife knew he was guilty it would have a strong tendency to make her desire to leave him, and a jury might be led to believe that, if defendant’s wife left him about the time he is charged to have committed the crime, she did so because of personal knowledge on her part that he was guilty. It is a matter of which we take judicial notice that wives frequently desert their husbands, and husbands their wives, for causes wholly disconnected with sexual crimes, and often for no real cause at all.. The evidence of defendant’s wife on cross-examination was emphatically to the effect that she did not leave her husband at anytime, and the inquiry, being as to a collateral matter, should have ended there.

VI. Defendant also complains of the following instruction given on the part of the State:

Instruction “The court instructs the jury that under the law the defendant is a competent witness in his own behalf, and that his wife is a competent witness to testify. for him, but in determining what * ' ^ weight you will give to the testimony of the defendant and his wife, you are instructed to take into consideration the fact that he is the defendant testifying in his own behalf and his interest in the result of this trial, and you will also take into consideration the fact in determining what weight you will give the testimony of his wife, that she is his wife, testifying for him.”

The above instruction is quite similar to the stock instruction given in nearly all criminal cases in which the wife testifies on behalf of the husband. The only difference in the instruction now in judgment and those generally given and often approved by this court, is that the instruction usually given follows more nearly the words of the statute and directs the jury that it may take into consideration the fact that the defendant and his wife are interested in the result of the trial; while the instruction above quoted and given in this case makes it the direct and imperative duty of the jury to consider the fact that the defendant and his wife are interested in the result of the trial — this regardless of whether they believe that such witnesses have sworn truthfully or falsely.

I suppose if the instruction as given in this case is approved it will next be in order for some trial judge to further disregard the law which prohibits instructions that comment upon the evidence (Sec. 5244, B. S. 1909) by telling the jury that they ought not to believe the testimony of defendant or his wife because they are interested in the result of the trial, thereby wiping out all benefit which a defendant and his wife, or a defendant and her husband, may derive from their statutory right to give evidence in behalf of each other, or in behalf of themselves in criminal trials.

Speaking for myself, I do not believe that the proviso in section 5242, Revised Statutes 19.09', which permits the fact to be shown that a witness is a defendant, or the husband or wife of defendant, “for the purpose of affecting the credibility of such witness,” was ever intended to authorize a court to give an instruction telling the jury how to weigh such evidence. Jurors are presumed to be men of fair natural sense.

It has long been the law that the interest of a witness in the result of a trial, or his relationship to the accused or other party to the suit, may be shown for the purpose of casting discredit upon his evidence. [State v. Elkins, 101 Mo. 344; Waddingham v. Hulett, 92 Mo. 528; and State v. Decker, 161 Mo. App. 396.] In 40 Cyc. 2657, the rule is announced that: “The fact that a witness is a relative of a party bears on his credibility, and so where husband and wife testify for each other the relationship should be considered. The fact of relationship does not, however, establish interest or bias, but is merely a circumstance from which it may be inferred."

So that the proviso of section 5242, before noted, adds nothing to the law of evidence, and ought not to have been made the subject of a special instruction. While I do not approve the instruction as given in this case because it tends to enlarge or expand a class of instructions which have a very shadowy footing in law, in the recent case of State v. Hyder, 258 Mo. 225, I did approve an instruction of that character given in the usual form. I did this not because I believed such an instruction ought to be given, but because such instruction had so often met with the approval of this court, and was probably harmless in that case, where the guilt of defendant was proven by an overwhelming array of evidence, and where the testimony of the wife related to a matter upon which she had no reliable knowledge.

In the Hyder case and many other cases therein noted instructions calling attention to the interest of a specifically named or designated witness was severely criticized, and I do not wish prosecutors or trial courts to understand that because I have upheld such instructions as harmless I will continue to do so. In a* doubtful case where such an instruction has proven preju-' dicial to defendant on the merits I may consider it reversible error.

Evidence Poverty. VIII. The evidence that prosecutrix was kept at a poor-farm at the time of the trial did not harm defendant m this case, because he had already voluntarily testified that the county was paying him for her keep while she was at his home.

Several other matters are complained of by defendant, but we cannot discuss all of them without making this opinion unnecessarily long. If the attorneys and trial court will acquaint themselves with the law pertaining to this class of cases, the cause may be retried (if the State elects to retry) in accordance with the law.

For the errors of the court noted in paragraphs III and Y of this opinion the judgment of the trial court is reversed and the cause remanded.

Walker, P. J., concurs in result; Paris, J., concurs in paragraphs 3 and 5 • and result.