Summary
In State v. Coones, 357 Mo. 1124, 212 S.W.2d 429 (1948), acquaintance with the victim's family was held on appeal not to indicate bias even though the juror was not questioned at all.
Summary of this case from State v. MullenOpinion
No. 40823.
June 14, 1948.
1. CRIMINAL LAW: Rape: Threats and Force. The prosecutrix testified that defendant threatened her with bodily harm and forcibly ravished her against her consent and over her utmost resistance. And there was corroborating evidence.
2. CRIMINAL LAW: Knowledge of Juror: Objection Too Late. The court refused the request to be excused of a juror who knew the family of the prosecutrix. This did not indicate bias either for or against defendant, and defendant's objection after verdict came too late.
Appeal from Greene Circuit Court. — Hon. Warren L. White, Judge.
AFFIRMED.
Flay E. Randle for appellant.
(1) When one is put to trial on a charge of a felony, the law clothes him with the sacred privilege of being tried before a fair and impartial jury composed of twelve disinterested and wholly unprejudiced jurors, and it is the duty of the trial court to see to it that fair and impartial persons are impaneled. State v. White, 34 S.W.2d 79, 326 Mo. 1000; 50 C.J.S., p. 945; State v. Conner, 252 S.W. 713; Gibbony v. St. Louis Transit Co., 103 S.W. 43, 204 Mo. 704. (2) When a prospective juror, after all peremptory challenges have been made, and said juror has theretofore given negative answers concerning his relationship to the parties and his bias or prejudices, if any, on his voir dire examination, then discloses to the court his relationship with regard to the prosecuting witness and requests the court to be excused for such reasons, the refusal by the court to excuse said juror as so requested, after such disclosure was improper and such discretion exercised by the court is reviewable by the appellate court. Theobald v. St. Louis Transit Co., 90 S.W. 354, 191 Mo. 395. (3) The evidence offered by the state wholly fails to show that Howard Irving Coones had at any time made any threats against Evelyn Mae Throne putting her in fear, or had used any force or violence on her to accomplish sexual intercourse with the prosecutrix. In prosecution for rape, the state has the burden of proving nonconsent of prosecutrix beyond reasonable doubt. State v. Egner, 296 S.W. 145; State v. Remley, 237 S.W. 489. J.E. Taylor, Attorney General, and Aubrey R. Hammett, Jr., Assistant Attorney General, for respondent.
(1) The verdict is in proper form, and there is also sufficient evidence to support the verdict. Sec. 4393, R.S. 1939; State v. Cason, 252 S.W. 688; State v. Catron, 317 Mo. 894, 296 S.W. 141; State v. Clark, 353 Mo. 470, 182 S.W.2d 619; State v. Schrum, 347 Mo. 1060, 152 S.W.2d 17; State v. Ring, 346 Mo. 290, 141 S.W.2d 57. (2) The court committed no error by leaving juror Cox on the jury. State v. Adams, 318 Mo. 712, 300 S.W. 738; State v. Jordan, 353 Mo. 405, 182 S.W.2d 563; State v. Crane, 202 Mo. 54, 100 S.W. 422; State v. Ward, 74 Mo. 253; State v. Burns, 351 Mo. 163, 172 S.W.2d 259; State v. Hoffman, 344 Mo. 94, 125 S.W.2d 55; State v. Salts, 331 Mo. 665, 56 S.W.2d 21.
Upon the information of the prosecuting attorney, appellant was tried in the circuit court of Greene County for the crime of rape by force. A jury returned a verdict of guilty and assessed the minimum penalty, two years' imprisonment in the penitentiary. He was sentenced accordingly. At the trial and on this appeal he was and is represented by counsel.
Appellant contends that the evidence is insufficient to support the verdict in that it fails to show any threats or force used by him. This assignment is wholly without merit. The prosecutrix testified that appellant threatened her with bodily harm and forcibly ravished her against her consent and over her utmost resistance. She is corroborated by other testimony.
The only other assignment of error made by appellant relates to an incident which occurred in empaneling the jury.
After challenges had been made by both sides and twelve jurors had been accepted, but before they were sworn to try the case, the record is as follows:
"JUROR COX: I would like to make a request at this time: Since seeing the girl, I know her family, and would like to be excused.
[430] "THE COURT: Well, you answered the questions and you have been left on the panel. There is nothing we can do about it now, Mr. Cox."
Appellant did not attempt to further question the juror, did not request that he be excused from the jury nor in any way indicate dissatisfaction with the court's ruling.
Appellant cites cases holding that in criminal prosecutions the State has the burden of proof, and defendant is entitled to a trial by an unbiased jury. Of course, that is good law, but the record here does not disclose any violation of the requirements announced by those cases. The fact that juror Cox was acquainted with the family of the prosecutrix did not indicate that he was biased either for or against the defendant. Defendant's counsel had the right to further question the juror, but did not have the right to withhold objection until after verdict.
We have searched the entire record and find no error. The judgment is affirmed. All concur.