Opinion
No. 43424.
February 9, 1953.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, DIVISION NO. 10, DAVID A. McMULLAN, J.
Morris A. Shenker, St. Louis, Paul L. Dobberstein, St. Louis, for appellant.
J. E. Taylor, Atty. Gen. and Hugh P. Williamson, Asst. Atty. Gen., for respondent.
Upon trial by a jury in the Circuit Court of the City of St. Louis, defendant was convicted of the crime of molesting with immoral intent Loretta Johnson, a minor, as that offense is defined by Section 563.160, RSMo 1949, V.A.M.S. His punishment was assessed at imprisonment in the State Penitentiary for a term of two years. Following judgment and sentence in accordance with the verdict, he has appealed, assigning as error: (1) refusal of the trial court to direct a verdict in his favor, (2) its failure to admonish counsel for the State for improper interrogation of a defendant's witness, and (3) failure to instruct on (a) the lesser offense of lewd and lascivious conduct and (b) alibi.
The information upon which defendant was tried charged that defendant on the 6th day of April, 1951, "in the presence of a certain minor, to-wit: Loretta Johnson of the age of eleven years did then and there wilfully and feloniously take indecent and improper liberties with said minor in the following respects, to-wit: by then and there taking her into a shed, laying her on a bench, and with a small pocket knife cutting a hole in the crouch [sic] of the panties of the said Loretta Johnson, by then and there removing his penis and rubbing his penis about the vagina and body of said minor, and thus and thereby did annoy and molest said minor; * * *."
Loretta, aged 11 years, lived with and was cared for by her aunt, Lucille Harmon, in the City of St. Louis, She was a pupil at Carr School. Across the street from the school is a public park known as Carr Street Park. It is enclosed by an iron fence, in which are open entrances. Defendant was and had been employed there for several years as a park keeper. Loretta knew him by sight only.
She testified: When school recessed at 3:30 p. m. on Friday, April 6, 1951, she, accompanied by Harriette Pearson, aged 10 years, and Marlene Moses, aged 10 years, started walking to their respective homes. They crossed the street, entered Carr Street Park and were standing at a water fountain when she saw defendant at a shed close by the fountain. He came to where she and her companions stood, said, "Eenie, meenie, minie, mo", and pointed at her as he said, "Mo". He then took her by the arm and pulled her to the shed and again repeated the same words. He there gave Loretta and each of her companions a dime, pulled Loretta into the shed, saying to her, "It won't take long". Harriette and Marlene followed them into the shed and there saw the entire occurrence. At this point in her testimony Loretta detailed in a childish manner but with unmistakably clear meaning the acts of defendant as specifically charged in the information.
When defendant released her, Loretta and her companions went to a place where they bought something to eat with the dimes given them. They then went to their respective homes.
Upon arrival home, Loretta hid her pants in a back room. The aunt learned that Loretta was bleeding from her privates and made her get and exhibit her pants. The aunt at first attributed the bleeding to early menstruation. But, on Sunday, Harriette came to the aunt's home and told her of the episode; and Loretta, after a threat of punishment by her aunt, also told her aunt about it.
Defendant was arrested on Monday, April 9th. On April 12th, Dr. Russell W. White, a physician and surgeon affiliated with Homer G. Phillips Hospital, examined Loretta. He found her hymen intact, but her external genitalia was inflamed and there was a mild discharge, indicating irritation from friction.
The two companions of Loretta fully corroborated her testimony as to the occurrences in the park and shed, identified defendant as her assailant, and said that Loretta was bleeding and crying when released by defendant. The pants worn by Loretta at the time of the alleged assault were also placed in evidence.
Defendant admitted his presence in the park during the entire afternoon of April 6th, but otherwise denied the entire matter. Several employees of the park and other witnesses testified to being near to and in the shed at the time the offense was allegedly committed and that it did not occur. Other witnesses testified that defendant's reputation for morality was good.
The conflict in the testimony of the witnesses in behalf of the State with that of the witnesses in behalf of the defendant was, of course, a matter for the determination of the jury. The evidence in behalf of the State was substantial and when believed by the jury, as its verdict shows it was, clearly warranted its finding. The trial court did not err in refusing to direct a verdict for defendant. State v. Tarwater, 293 Mo. 273, 239 S.W. 480, 486; cases collated in 9A West's Missouri Digest, Criminal Law, 1159(2)f, page 499.
During the cross-examination of Elmer A. Harrison, a park patrolman, counsel for the State asked him: "Now, when did you find out that this offense occurred on the 6th of April, 1951?" Counsel for defendant objected on the ground the question was "highly improper, highly repetitious and hearsay". The record then shows:
"The Court: It will be sustained. He has already testified to that, Mr. Settich. That has been gone into.
* * * * * *
"Mr. Settich: As to the date of the offense?
"The Court: Yes.
"Mr. Dobberstein: Object to the comment of counsel, if the Court please, and ask counsel be admonished.
"The Court: No, he may ask the Court. My notes show you had previously asked him that, and he stated —".
Thus, it is clear that the objection was promptly sustained, and that the motion to admonish was directed against counsel's query addressed to the court and not to the question propounded to the witness. The record reveals no indication of bad faith on the part of counsel in making the query. Apparently, the court did not believe it to have been made in bad faith or to have any prejudicial effect on the jury; neither do we. Under such circumstances, we should, and do, defer to the broad discretion vested in the trial court in determining the effect of an incident such as this. See State v. Smith, 355 Mo. 59, 194 S.W.2d 905, 907.
Thereafter, during cross-examination of the same witness, the State's counsel again asked: "You don't know the officer who told you it was April 6th, that this happened?" Again counsel for defendant objected on the ground of its being repetitious and hearsay and asked that counsel be admonished. The court replied: "Well, it went it before without objection. I will let him ask him once more * *." This witness had testified quite positively that he was in the park during the afternoon of April 6th when the offense was alleged to have been committed and saw defendant at that time, and that it did not occur. In trying to lessen the effect of that testimony counsel for the State had propounded numerous questions to the witness as to when he learned that defendant was arrested, when he had gone to the police station to see defendant, when he had been told and who had told him that the offense was charged to have been committed on April 6th, et cetera. These questions had been asked and answered without objection. From a reading of the record it is readily apparent that the questions were not asked for the purpose of establishing the date of the offense, but rather to establish that witness' memory of other dates and other incidents to which he had testified was faulty, presumably to demonstrate thereby a possibility of error on the part of the witness in testifying that he had been at the park when the offense was alleged to have been committed.
The date of the alleged offense was never an issue in the case. Under the evidence it either occurred on April 6th or it did not occur at all. The persistence of the counsel for the State in repeating the question would, if of any effect, tend only to irritate the jury to his prejudice. The trial court saw no prejudice to the rights of defendant and none is apparent upon the face of the record. No abuse of discretion on the part of the trial court is shown. The assignment must be overruled. State v. Smith, supra.
Defendant contends that the court should have instructed the jury as to the lesser offense of lewd and lascivious conduct, as that offense is defined in Section 563.150, RSMo 1949, V.A.M.S. The contention is without merit. Sec. 563.160, under which defendant was charged, is a special statute making it a felony to molest a minor in the manner shown by the evidence adduced by the State in this case. Defendant does not question that Loretta was in fact a minor. He denies the whole episode. Under the evidence he was either guilty of the felony with which he was charged or he was entitled to acquittal. That issue was decided against him by the verdict of the jury.
Defendant finally contends that the court erred in failing to instruct on alibi. Suffice it to say that he asked no such instruction. We have repeatedly held, and now hold, that in the absence of a request therefor the court cannot be convicted of error in failing to give such an instruction. State v. Trice, 338 Mo. 744, 92 S.W.2d 135, 136; State v. Johnson, 361 Mo. 214, 234 S.W.2d 219, 222.
The judgment of the trial court is affirmed.
All concur.