State v. McDonough

KENNISH, P. J.

The defendant was indicted in the city of St. Louis, charged with the crime of rape upon Virginia Mansfield, a female child under the age of fourteen years. Upon a plea of not guilty, he was tried and convicted of the offense of assault with intent to ravish, and his punishment assessed at imprisonment in the penitentiary for three years. Judgment was pronounced in accordance with the verdict and after taking the proper steps he appealed to this court.

The evidence for the State tended to prove the following facts:

At the time of the offense charged the defendant, a married man with a family consisting of a wife and two small children, was engaged in the business of keeping a small grocery store and saloon in the city of St. '.Louis. He resided across the street from the store. Mrs. Mansfield, mother of the prosecutrix, her mother Mrs. Stanton, the prosecutrix and her sister, resided near the store and residence of the defendant. The prosecutrix was six years of age and her sister about two years older. The Mansfield children and the .two small children of the defendant played together. On the day of the alleged crime the defendant, as was his custom, went to his residence in the middle of the afternoon to take a nap, leaving the store in charge of his wife, so that he could return and keep his place open *226 until late at night. About five-thirty o’clock in the afternoon of June 25, 1908, the children were playing on the defendant’s porch, and he called the prosecutrix and his own four-year old girl into his room. The prosecutrix testified that the defendant laid her on the bed alongside of him, took down her panties, placed his hand on her private parts and hurt her. The defendant’s little girl was in the room at the time. The prosecutrix then went with the defendant’s daughter to get a bucket of ice cream, and, being called by her sister, went home to her supper. Mrs. Mansfield testified that-the prosecutrix was sobbing and crying when she came home and that upon being asked to tell what was the matter, related her mistreatment by the defendant. Mrs. Mansfield immediately examined' her daughter and found her private parts contused and swollen and found some traces of blood. About two or three hours thereafter Mrs. Mansfield and her mother went to the defendant’s store and, in the presence of his wife, accused him of mistreating the little girl. He denied any knowledge of the alleged misconduct and, after his accusers had left, sent his wife to the Mansfield home to learn the facts as to the charges made. Two days thereafter Mrs. Mansfield, accompanied by a midwife, took the prosecutrix to a physician, who found the parts somewhat bruised and inflamed on the inside. The physician and the midwife testified as to the child’s injuries.

The defendant and his wife testified in his behalf and denied the incriminating facts’ testified to by the witnesses for the State. Other witnesses for the defendant testified to statements made by Mrs. Mansfield, soon after the date of the alleged crime, in conflict with her testimony at the trial. The defendant introduced evidence of good character and, although questions were asked his character witnesses on cross-examination, indicating that defendant was not of good char *227 acter, no evidence was offered by the State -upon that issue. Other facts in evidence will be referred to in the opinion.'

I. Omitting formal parts, the indictment is as follows:

‘ ‘ The grand jurors of the State of Missouri, within and for the body of the city of St. Louis, now here in court, duly impaneled, sworn and charged, upon their oaths present, That Thomas McDonough on the twenty-fifth day of June, one thousand nine hundred and eight, at the city of St. Louis aforesaid, in and upon Virginia Mansfield, a female child under the age of fourteen years; to-wit, of the age of six years, unlawfully and feloniously did make an assault, and her, the said Virginia Mansfield, unlawfully and feloniously did carnally know and abuse; contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State.’’

Appellant assails the indictment as insufficient on the ground that while the venue of the assault is properly laid and is also stated in the margin, there is no venue laid as to the averment of carnal knowledge.

It is provided by section 5107, Revised Statutes 1909, that, “It shall not.be necessary to state any venue in the body of any indictment or information;, but the county or other jurisdiction named in the margin thereof shall be taken to be the venue for all the facts stated in the body of the same.” And section 5115 provides: “No indictment or. information shall be deemed invalid, nor shall the trial, judgment or other proceedings thereon be stayed, arrested or in any manner affected . . . for want of a proper or perfect venue; nor for want of any venue at all. ’ ’ Under these statutes, as construed in the following decisions, we hold the indictment sufficient- against the attack made upon it, and that this point in appellant’s brief is without merit. [State v. Simon, 50 Mo. 370 ; State *228 v. Dawson, 90 Mo. 149 ; State v. Brown, 159 Mo. 646 ; State v. Hughes, 82 Mo. 86 .]

II. Appellant contends that the verdict is insufficient to support the judgment. It is as follows: “We, the jury in the above entitled cause, find the defendant guilty of assault with intent to ravish, -and assess the punishment at three years. F. Westman, Foreman.”

Section 5254, Revised Statutes 1909, provides: “Where the jury find a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment by their verdict, or assess a punishment not authorized by law, and in all cases of judgment by confession, the court shall assess and declare the punishment, and render judgment accordingly.”

It is apparent that if the.verdict in this case failed to declare the punishment, it fell within the provisions of the foregoing statute, and the punishment was properly fixed by the judgment of the court. On the other hand, if it sufficiently declared the punishment, it is not open to the objection made.

III. Instruction numbered 11 is in the usual form and authorized the jury to take into consideration the interest of the defendant and his wife in the result of the trial, and their marital relation, in passing on the credibility of their testimony.

Appellant vigorously assails this instruction as wrong in principle and urges that it should not longer receive the approval of this court. This instruction has been given in criminal cases in the courts of this State for over thirty years. It has been considered and approved by this court in many cases and we are unwilling to hold that the trial court committed reversible error in giving it in this case. [State v. Maguire, 69 Mo. 197 ; State v. Boyer, 232 Mo. 267 ; State v. Dilts, 191 Mo. 665 , and cases cited.]

*229 IV. After Mrs. Mansfield and her mother had returned from defendant’s store to their home, Mrs. McDonough, the wife of the defendant, went to the Mansfield home, at her husband’s suggestion, to learn the facts about the trouble. Mrs. Mansfield testified that she sent for Mrs. McDonough, and that the latter came to her house in response to the request. When Mrs. Mansfield was on the witness stand as a witness for the State, and while the State was making its case in chief, she was asked, on cross-examination, if Mrs. McDonough came to her home that night, and she answered in the affirmative. After explaining where her children were when Mrs. McDonough arrived,-she was asked: “Let me ask you and refresh your memory possibly in this way; don’t you remember Mrs. Mc-Donough asked you to let her see the little child and you said you would and called her in?” To which the witness answered: “No, sir. She didn’t ask me to examine her. We wanted her to tell the story, but Virginia refused and would not do it. I asked her and pleaded with her to tell Mrs. McDonough, but she said she would not do it. ’ ’

Invoking the principle of law that when a part of a conversation is drawn out in evidence the adversary is entitled to the whole utterance, the prosecuting attorney, on redirect examination, asked the witness to “tell the jury all the conversation you had with Mrs. McDonough when you sent for- her and she came over to your house.” The witness answered: “Yes, sir. Well, she came over and she was crying, and I told her — I said, ‘Mrs. McDonough, I want to warn you. You have two little girls there yourself.....’ ”

Objection was here made by counsel for the defendant to the testimony of the witness, which objection was argued to the court at length, and the court ruled that the question was competent. The witness then continued: “I said ‘Mrs. McDonough, I want to *230 warn yon.’ I said, ‘Ton have two little girls of your own over there. You nevér trust them under his hands.’ I said, ‘Because when he has done that to my little girl he will do it to yours.’ She said she knew he was lowj but she never thought he would do like that. She said, ‘If I had been a woman of the half world he couldn’t have treated me worse than he did with disrespect and with every abuse in the world. Many a night I have had to sit out on the front steps for fear he would shoot me.’ ” Upon objection by the defendant, the court ruled: “Conversation with regard to this offense is competent. Conversation with regard to other matters is not.” Counsel for defendant then objected that, “The conversation, as it turned out, was altogether about other matters.” To which the court replied and ruled as follows: “No, it was not. It was about her warning her against McDonough doing the same thing to her little girl, and referred to the fact of her having treated her little girl this way. That part of the conversation is about this matter. What she said about matters that took place between herself and her husband before that is not competent. I so rule and instruct the jury to disregard that part of the conversation.” The defendant saved his exceptions.

If the foregoing ruling of the court is the law, then the State, in a criminal case, even in a capital case, may have repeated to the jury, as evidence in support of the charge, the talk of two women, out of court and not in the presence of the defendant, in which they ágree in advance of the jury that the defendant is guilty of the offense charged, as well as of many other offenses in no manner connected with the case on trial. While the court told the jury, after this evidence was in, that they should not consider the conversation, as to the other offenses of the defendant, testified to by Mrs. Mansfield, it is questionable whether *231 the effect of such an instruction is not of theoretical rather than of practical efficacy.

Before taking up the main question involved in the ruling now under consideration, reference should be made in passing to the practice, not uncommon in the courts, of hearing- in the presence of the jury the evidence upon the competency of a witness or of testimony offered, in cases as the one in hand, where the testimony may have an influence upon the minds of the jury, and, if found incompetent, attempting to withdraw its effect by an instruction or direction to the jury.

In the trial of a criminal case, and especially in a case involving such moral turpitude and of such revolting character as that for which defendant was on trial, the jurors come into the ease with very decided views upon the subjects necessarily discussed in the testimony of the witnesses, and when statements are made by the witnesses which are harmful and incompetent under the rules of evidence, it is extremely doubtful if the impressions made upon the minds of the jury can be neutralized by an instruction or direction of the court. There is no difficulty in obviating 'any danger of injustice to the accused hy settling such matters in the absence of the jury. This course may require a little additional time, but the predominant importance of vouchsafing to the accused a fair trial, upon competent testimony only, fully justifies the propriety of the course suggested, and which, in fact, is generally followed by the courts.

In the case of State v. Witherspoon, 231 Mo. 706 , this court said: “When, in the course of a trial, a question is raised as to the competency of a witness, and the circumstances of the case are such that the voir dire examination of the witness by the court may have an influence on the minds of the jury upon the issues before them, this court has commended it as a wise and *232 judicious course of procedure that the jury be retired from the courtroom pending such examination. [Stetzler v. Railroad, 210 Mo. l. c. 709.]”

. Was the whole utterance, the entire conversation of Mrs. Mansfield and Mrs. McDonough, admissible in evidence against the defendant?

Neither of these persons engaged in the conversation was a party to the cause, and under the well recognized general rules of evidence any statement made by either out of court in the absence of the defendant was hearsay and not admissible except in the case of impeachment. It seems to be conceded by appellant upon this point that the State was entitled to the whole conversation between the two- women to the extent and so far as it dealt with the particular matter brought out on cross-examination by the defendant. But upon what theory was the principle invoked by the State applicable in this case? Mrs. Mansfield was merely a witness and her statements out-of court were hearsay. No ground was laid for her impeachment. It was clearly competent for the defense to impeach her by proving prior statements in conflict with her testimony, and in stich case it would'have been competent for the State to have offered evidence of former statements in harmony with her testimony, but that is not this case. '

The rule of law under consideration, as applied to conversations, is limited to admissions and declarations of parties to the cause, and only in exceptional cases has it ever been applied to third parties. The principle is stated in 3 Wigmore on Evidence, section 2115, as follows: “The general phrasing of the principle, then, is that when any part of an oral statement has been put in evidence by one party, the opponent ’may afterwards on cross-examination or re-examination, put in the remainder of what was said on the same subject at the same time. This phrasing leaves *233 something to he desired in definiteness, but it is practically applied without much difficulty' and with little or no quibbling. 'Its most common application is to conversations in general, including the admissions of an opponent and to inconsistent statements of a witness used in impeachment; here it may be noted that a conversation in a party’s presence is in effect merely one form of an admission, because statements in a party’s presence are usually equivalent to admissions by him. ” _

There is a striking analogy in the facts and questions of law presented, between the' case of People v. Flaherty, 162 N. Y. 532 , and the case at bar. In that case the defendant was convicted of the crime of having sexual intercourse with a female under the age of sixteen years. The prosecutrix was Marie Sweeney. She first told the Skillen family of her trouble. Jennie Skillen was a' witness for the people. The court, through Parker, C. J., l. c. 544, discussing the questions raised upon her testimony, said: “Now the district attorney having brought out the fact that the accusation against the defendant by Marie Sweeney was first made to the Shillen family, the defendant sought to show on cross-examination that Jennie Skillen had first suggested the name of Father Flaherty to Marie Sweeney as the author of her misfortune. Counsel said, ‘Didn’t yon say to her, “Wasn’t it Father Flaherty!” and she said “yes!” A. No, sir, I did not. Q. How did you say that! A. As near as I can remember I asked her who she had been with. She didn’t answer. I said “Marie, you know and I know you have been with some one, and I want you to tell me- who the author of your trouble is.” She wouldn’t tell me. Q. I only ask you for the question and the answer, the time when the name of Father Flaherty was used; what did you say and what did she say! A. I said “Who was it!” . . . She *234 then said it was Father Flaherty. Q: And that was the first mention she made of the name of Father Flaherty in the matter? A. Yes, sir.’ This was all of the cross-examination on that subject. The counsel for the people then put the question which, after referring to the statement of Marie Sweeney that Father Flaherty was responsible for her condition, concluded as follows: ‘Did she give you any reason why she had intercourse with him?’ These reasons were not competent as evidence prior to the cross-examination of the witness, nor were they made either necessary or competent by that cross-examination. This was not a case where a part of a conversation being’ given, the rest was needed in order to present the situation fairly; nor did the question call for the rest of the conversation, hut instead it ashed for the reasons only, and they were not competent as evidence for any purpose ; nor is there even excuse for suggesting that they were made so by the fact that the hearsay declarations of the complainant as. to the name of the person responsible for her condition was perhaps drawn out by the defendant instead of the people.”

We are of opinion that the court committed rever-' sible error in permitting Mrs. Mansfield, over the objections of the defendant, to give in evidence to the jury, the alleged conversation with the defendant’s wife.

VI. On the cross-examination of the defendant’s wife she was asked by counsel for the State: “How many times have you and Mr. McDonough been separated during that time?” No reference to her separation from her husband was made in. her examination in chief. Upon objection that the cross-examination was improper because that, matter was not referred to in chief, the court ruled that only the defendant w'as protected in so limiting the cross-examination, and that the evidence was competent on the issue of good *235 character. This ruling of the court was clearly erroneous, and cannot be sustained upon either of the reasons assigned. The first reason given is wrong, because the'statute confers upon the wife the same immunity from cross-examination beyond the scope of her direct examination, as in the case of the husband on trial. [R. S. 1909, sec. 5242.]

The ruling cannot be sustained on the second ground for the reason that the character of the defendant on trial cannot be assailed by the State by the proof of specific acts of wrongdoing. [State v. Bulla, 89 Mo. 595 ; State, v. Lockett, 168 Mo. 480 ; Kelley’s Crim. Law and Prac., sec. 252.]

' There are other alleged errors presented in appellant’s brief, but because of the disposition to be made of this case we do not deem it necessary to pass upon them.

We are of the opinion that prejudicial error was committed against the defendant. The cause is, therefore, reversed and remanded for a new trial.

Ferriss and Brown, JJ., concur.