Opinion
No. 42267.
September 10, 1951.
APPEAL FROM THE CIRCUIT COURT, CARROLL COUNTY, JAMES S. ROONEY, J.
Wayne Wheeling, Brunswick, for appellant.
J. E. Taylor, Atty. Gen., Robert L. Hyder, Asst. Atty. Gen., for respondent.
Clyde Burkhart was convicted in the Circuit Court of Carroll County of statutory rape, and sentenced to a term of five years in the penitentiary in accordance with the verdict of the jury. He appealed to this court, but filed no brief. We look to his motion for a new trial for his assignments of error, and consider such of them as are sufficient under § 547.030, RSMo 1949, to preserve anything for review.
The sordid and revolting facts of the case need not be stated in any greater detail than that necessary to a disposition of defendant's challenge of the sufficiency of the evidence. The prosecuting witness, Rayna, is defendant's stepdaughter, her mother having married him in September, 1943. She is apparently subnormal; was 12 years old at the time of the alleged offense, February 12, 1949, and until 9 years of age, when a growth in her throat was removed by surgery, she had been unable to talk. She had quit school in the third grade. As bearing only on the general background of the parties, it may be added that she had been born to her mother and a Mexican father out of wedlock, and that defendant had been twice convicted of felonies and served penitentiary sentences therefor.
The family was living at the time on the Harve Smith farm in the country below DeWitt in Carroll County. It consisted of defendant (aged 45), his wife Evelyn, and Evelyn's two children, Rayna and Paul (aged 8), and "the baby" (Clyde Sherman), aged 3-1/2, born of the marriage of defendant and Evelyn. The five-room house in which they lived was described as being a story and a half; living room, dining room and kitchen downstairs, with two bedrooms on the upper level, referred to as the attic. There was only one bed in each of the bedrooms. It was the custom for defendant, his wife and the baby to sleep in the east bedroom, and for Rayna and her little brother Paul to occupy the west bedroom, and share that bed.
Defendant's wife, Evelyn, was severely injured in an automobile accident on Saturday afternoon, February 12, 1949, and was taken to a hospital at Moberly. Defendant and the baby, Clyde Sherman, who had gone along, returned to the home after dark that night. Rayna testified that in addition to herself, only her stepfather, Paul and the baby were at the home that night; that after she had gone to bed with her brother as usual, defendant came into the room, and sent Paul into the other bedroom, then got into the bed and had sexual intercourse with her. She was very positive as to the fact of penetration.
She was corroborated by Paul as to the fact that defendant came to the bed where he slept with Rayna, and made him go into the other bedroom. Paul further testified that he then got in bed with the baby, and that defendant went into Rayna's room, and presently he heard Rayna crying.
Dr. John Morris Atwood, a physician at Carrollton, examined prosecutrix about two months before the trial, and he found the hymenal ring "while not completely broken down, had certainly been torn to a moderate extent," thus indicating entry.
Defendant stoutly denied his guilt. He testified that after returning from Moberly about 11 o'clock, he sat up all the rest of the night (downstairs) with his brother and sister-in-law, and that he did this because he was anticipating a call from the hospital, having been there informed that his wife "was in bad shape, and they didn't think she would live overnight." The two relatives just mentioned testified that they sat up with him, as he had stated. Defendant attributed the charge against him to a disposition on his wife's part to "frame" him. Several of his relatives testified that Evelyn had made threats to "send the s-o-b to the penitentiary."
In determining the submissibility of a criminal case the state's evidence, with such inferences favorable to the state as may legitimately be drawn from the facts proved, is to be taken as true, and the evidence of the defendant contradictory thereof is to be disregarded. State v. Hinojosa, Mo.Sup., 242 S.W.2d 1; State v. Moore, 339, Mo. 52, 60, 95 S.W.2d 1167, 1171. We hold that under the state's proof, the question of defendant's guilt was clearly one for the jury.
The assignment of the motion for new trial with respect to the instructions is this: "Error of the court in refusing to give instructions A, B and C, as requested by defendant." This is manifestly insufficient to preserve anything for review under the motion for new trial statute, supra.
It is charged that the court erred in permitting prosecutrix to testify to a prior similar offense against her person by defendant. The admissibility of such evidence is so well established that discussion of the principle, or the ground on which it rests is deemed unnecessary. State v. Richardson, 349 Mo. 1103, 1110, 163 S.W.2d 956, 960; State v. King, 342 Mo. 975, 987, 119 S.W.2d 277, 283.
It is complained in the next assignment that the record conclusively shows that the prosecuting witnesses was coached "to say and utter the material words * * upon which the state relied to establish the guilt of the defendant, [which] were the only words and only evidence upon which the state relied * * *, there being no corroborative evidence of any kind offered by the state to establish the commission of said crime." The record does not sustain the charge. It is apparently based on the fact that the prosecutor suggested the substitution of a more genteel term or terms in describing the commission of the offense than the less refined terminology which one from prosecutrix' environment might be prone to use.
The motion for new trial also relies on newly discovered evidence, to wit: That the prosecutrix' condition, as found and described by Dr. Atwood, resulted from a previous examination, made in July, 1949, by physicians at Mercy Hospital in Kansas City, which (earlier) examination showed the genitals to be in normal condition, and disclosed no evidence or indication of any rape or attempted rape upon her. There is no supporting affidavit to show due diligence on the part of defendant. Under the decisions, this should be done. State v. Hohensee, 333 Mo. 161, 166, 62 S.W.2d 436, 439; State v. Pittman, Mo.Sup. 221 S.W.2d 163, 164. Moreover, no such affidavit could have been made in good faith because it affirmatively appears that the matter of her examination at Mercy Hospital at that time was not only the subject of inquiry at the trial, but on cross-examination defendant's counsel sought to wring from the prosecuting witness an admission that she went to Mercy Hospital to be examined because of an irritation resulting from acts of self abuse. Consequently, defendant will not be heard to say that the so-called newly discovered evidence now relied on could not, with reasonable diligence, have been discovered prior to the trial. The assignment is unavailing.
The record proper has been examined, and found to be regular and sufficient. Judgment affirmed.
All concur.