Summary
In State v. Oscar, Mo., 226 S.W.2d 722, a 99-year sentence was reduced to 20 years by the trial court, and in State v. Durham, Mo., 418 S.W.2d 23, the punishment for statutory rape was fixed by a jury at 35 years.
Summary of this case from State v. DeckardOpinion
No. 41538.
February 13, 1950.
APPEAL FROM THE CIRCUIT COURT FOR JACKSON COUNTY, BEN TERTE, J.
J. E. Taylor, Attorney General, W. Brady Duncan, Assistant Attorney General, for respondent.
Plaintiff in error, defendant below, was convicted of rape upon an eleven year old girl. The crime was committed in Kansas City, Mo., about 8 p. m., November 29, 1947. The punishment assessed by the jury, ninety-nine years confinement in the penitentiary, was reduced to twenty years by the trial court and defendant was duly sentenced. On defendant's application, this court issued its writ of error and caused the transcript of record and defendant's bill of exceptions below to be filed. Defendant filed no brief. The attorney general filed a brief on behalf of the state.
The two assignments of error made by defendant in his motion for new trial require that it be stated that defendant was a Negro and that the child raped was white. The first such assignment was that the ninety-nine year penalty assessed by the jury in its verdict was so severe as to show "a preconceived judgment and a bias and prejudice on the part of the jury against defendant because of his race." The other assignment was that state's counsel was guilty of misconduct in referring, in both his opening statement and his argument, to the prosecuting witness as "a little eleven year old white girl; that such statements were "highly inflammatory, were improper argument under the circumstances, defendant being a Negro man, and were inimical to an impassioned consideration by the jury of the issues of the case."
It is not necessary to set out the evidence relating to the rape of the prosecuting witness on the date charged. Defendant, through his counsel, conceded that the crime had been committed but denied that defendant was the perpetrator. Defendant and two of his witnesses testified that on that particular day he had worked on a farm in Clay County, Mo., from early morning until about 9 or 10 o'clock that night. Defendant was twice identified by the prosecuting witness as her assailant, once at the police station after his arrest and again in the courtroom during the trial.
Once in his opening statement and twice in his argument the assistant prosecuting attorney referred to the prosecuting witness as "white." Defendant's counsel made no objections and made these same references in their examination of the jury panel. The assistant prosecuting attorney's other numerous references to the child throughout the entire trial were: "This little eleven year old girl," "this little girl," and "this child."
In his examination of the panel the assistant prosecuting attorney stated:
"Ladies and gentlemen, the case which twelve of your number will eventually be selected to hear today involves the rape of a little eleven year old white girl. * * The defendant in this case is Edward Oscar, this boy right here (indicating). * * * The defense attorneys in this case are Mr. Lewis Clymer, this gentleman right here (indicating), one of our young attorneys in Kansas City, and Mr. Joseph Moore; he is the other attorney who will be with Mr. Clymer, out in the Lincoln Building. * * *
"It happens in this case that this defendant is a Negro man, and it happens that the little girl who was raped was a little white girl. We want a jury that will be fair and impartial. We don't want any one to persecute this man because he happens to be a Negro, and we don't want any of you fellows to be sympathetic to him for that reason alone. Would that fact of itself prejudice you either for this defendant or against him? We want it to be an absolutely fair trial."
Immediately following this statement Mr. Clymer, one of defendant's attorneys, stated: "Ladies and gentlemen of the panel, I want to ask you the same question that Mr. West just finished asking you, because it is quite important to me and to this defendant here. He said to you that you must find him guilty beyond a reasonable doubt. That is the law. There will be two sides to this case, as you know, too, but I am a Negro lawyer and he is a Negro, and if any of you feel that because of those two facts you might have some preconceived notion as to the guilt or that you might not be able to be impartial, we would like you to state it now. You owe that to him, and you owe it to yourself. Do any of you have any preconceived notion about sex crimes being committed more by colored men than by any other group of men? Do any of you have that kind of notion? I take it then, that if you are selected, all those of you will give this man a fair and just trial. Thank you."
Thereafter additional members of the jury panel were sworn and the assistant prosecuting attorney concluded his further examination of the panel with this statement: "I want to mention at this time that this defendant happens to be a Negro. It so happens that the little girl raped in this case was a little white girl. We want this man to have a fair trial. We don't want you to find against or for him because he happens to be a Negro. Is there any one on this panel who would be prejudiced one way or the other because of that set of facts? I believe that is all."
Mr. Clymer then stated: "Ladies and gentlemen of the jury: I am going to ask you exactly what Mr. West has already asked you, and the reason I am going to ask you to repeat it is because it is very important that this man does have a fair trial. As you know, there are two sides to any lawsuit, and we have a side of it, too, and he should be found guilty beyond a reasonable doubt before he is punished in any way. And the fact that he is a Negro, we want to be sure that that will not be against him, and we want you to give him a fair and just verdict, and if anybody does have any feeling because of his race or if you have any preconceived ideas that Negro men commit sex crimes or believe they are apt to do so, I wish you would state it. None of you have such ideas or notions about it. I take it, then, that you will give him a fair and just trial. Thank you."
Such was the atmosphere in which the jury was impaneled and the case tried and argued. Defendant was represented by two Negro members of the Missouri Bar who ably presented defendant's alibi defense and argued his case to the jury. The race of the prosecuting witness and of the defendant, respectively, was obvious to the jury. Throughout the trial the witnesses, some of them Negroes, and counsel for both the state and the defendant, referred to defendant as "a colored man." Defendant testified that the other men working at the farm in Clay County that day were "Robert Pool and a couple of white fellows." And, except as above indicated, in the examination of the jury panel, in the opening statements and in the arguments, counsel for both sides referred to the defendant as "this man," "this defendant," or "this colored man," and to the prosecuting witness as "this little girl," "this eleven year old girl," "this little eleven year old girl," or "this little child."
The information upon which defendant was tried charged the unlawful and felonious carnal knowledge and abuse of a female child under the age of sixteen years. Sec. 4393, R.S. 1939, Mo.R.S.A., authorizes the imposition of the death penalty or imprisonment for not less than two years. The ninety-nine years imprisonment assessed by the jury was within the limits prescribed by law and therefore its severity cannot be said to reflect a "preconceived judgment, bias or prejudice against defendant because of his race." We agree with the trial judge that there is no merit in defendant's first assignment of error.
Nor do we feel that there is merit in defendant's other assignment. The portions of the transcript quoted herein show quite clearly that the assistant prosecuting attorney's references to the prosecuting witness as "white" were not intended to, nor did, arouse a racial prejudice against defendant because of his race. This conclusion is supported by the entire record of the trial. The defendant and the other witnesses were in court and the race of each was known to the court, to the jury, and to counsel. In examining the jury panel, counsel on both sides emphasized that the child was white and that her assailant was a Negro. This emphasis was not for the purpose of creating prejudice against the defendant, but of insuring that he would receive a fair trial even though the girl raped was white and he was colored. The trial judge was in a position to observe the witnesses and the conduct and argument of counsel and to decide whether or not the assistant prosecuting attorney made an improper argument. Until he filed his motion for new trial, defendant made no objection to the attitude of counsel for the state. In fact, in his argument one of defendant's counsel said of the assistant prosecuting attorney: "Mr. West is generous. I don't mind saying that. He is a gentleman." The trial judge ruled against defendant upon his second assignment of error and we approve his ruling. State v. Gensler, Mo.Sup., 295 S.W. 1081.
In addition to the errors assigned in the motion for a new trial, we have examined the entire record and find no reversible error. Accordingly the judgment is affirmed.
VAN OSDOL and ASCHEMEYER, CC., concur.
The foregoing opinion by LOZIER C., is adopted as the opinion of the court.
All the Judges concur.