text:
    STATE of Missouri, Respondent, v. James Nathaniel MOORE, Appellant.
    No. 48804.
    Supreme Court of Missouri, Division No. 1.
    Feb. 12, 1962.

      Samuel Raban, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., Charles H. Sloan, Sp. Asst. Atty. Gen., for respondent.
   HYDE, Judge.

Defendant was convicted of forcible rape (Sec. 559.260, statutory references are to RSMo and V.A.M.S.) under the Habitual Criminal Act (Sec. 556.280) and sentenced to 45 years’ imprisonment. Defendant has appealed but filed no brief so we consider all assignments properly made in his motion for new trial. State v. Stehlin, Mo.Sup., 312 S.W.2d 838. Four grounds were assigned.

The defense was alibi but defendant was positively identified by the prosecuting witness and he raises no question as to the sufficiency of the evidence to support the jury’s verdict of guilty as charged in the indictment or as to the correctness of the court’s instructions. Therefore it is only necessary to say that the evidence showed that the prosecuting witness, while walking on the sidewalk of a street in St. Louis, early in the evening of November 26, 1960 was seized by defendant, who came up behind her. She fainted and while unconscious was dragged through a gangway or alley into a yard near an apartment house. She regained consciousness while defendant with his hand on her throat, choking her, was having sexual intercourse with her. The first and third grounds of defendant’s motion relate to the opening statement of the State. Defendant’s first ground was that his motion for discharge at the close of the opening statement should have been sustained because it did not include all the elements necessary to sustain the charge of rape. This ground is without merit for the reasons stated in the State’s brief, as follows: “The elements of forcible rape are carnal knowledge, force, and commission of act ‘without consent’ or ‘against the will’, of the woman. See State v. Egner, 317 Mo. 457, 296 S.W. 145. There was reference to carnal knowledge when the State’s attorney said in his opening statement that defendant ‘ * * * was in the act of having sexual intercourse’ with the complaining witness. The force employed was mentioned in the opening statement when the assistant circuit attorney said the victim was ‘ * * * seized from behind and dragged into gangway * * The matter of ‘without consent’ was properly covered when a reference was made to the fact that the victim lost consciousness prior to the original consummation of the act.” (See also State v. Jones, 363 Mo. 998, 255 S.W.2d 801, 805; State v. Deppe, Mo.Sup., 286 S.W.2d 776, 780.)

Defendant’s third ground was that the court should have declared a mistrial on his motion because of reference in the opening statement to an additional crime of robbery by defendant. This was the statement that upon completing intercourse with the prosecuting witness defendant reached into her coat pocket, took her wallet and then got up and fled through the gangway. The court overruled that motion “because it is part of the res gestae.” This ruling was correct. (See State v. Rasco, 239 Mo. 535, 575, 144 S.W. 449; State v. Harrison, 263 Mo. 642, 658, 174 S.W. 57; State v. Ward, 337 Mo. 425, 85 S.W.2d 1, 6; State v. Quilling, 363 Mo. 1016, 256 S.W.2d 751, 753; State v. Martin, Mo.Sup., 275 S.W.2d 336, 338; State v. White, Mo.Sup., 301 S.W.2d 827, 829; State v. Swinburne, Mo.Sup., 324 S.W.2d 746, 753, and cases cited; State v. Varner, Mo.Sup., 329 S.W.2d 623, 627; State v. Lunsford, Mo.Sup., 338 S.W.2d 868, 872.)

Defendant’s other two points relate to introduction of certain exhibits. Defendant’s ground Two was that the court made voluntary and gratuitous explanation of exhibits 1, 2, 3 and 4 when they were 'introduced by the State at the close of the State’s' case, which amounted to a comment on the evidence. Defendant’s ground Four alleges error in the admission of these and other exhibits. Exhibits 1, 2, 3 and 4 were photographs showing views of the scene of the offense, including nearby buildings. Upon objection that they did not portray conditions of the scene at the time the act occurred, the court sustained the objection as to Exhibit 2 and admitted the others explaining that they were received only to show the location and relation of objects, pointing out differences such as time of day and weather conditions. No objection was made to this explanation so this objection as to Exhibits 1, 3 and 4 is eliminated. Defendant’s objection to the admission of these exhibits was that they did not reflect actual conditions at the time of the alleged rape. However, the differences shown were that they were taken in the daytime rather than at night and showed snow on the ground which was not there on the evening involved. These differences were shown in the evidence and stated by the court in admitting them. (See State v. Lindsey, Mo.Sup., 80 S.W.2d 123, 125; State v. McGee, 336 Mo. 1082, 83 S.W.2d 98, 107.) We hold it was not error to admit these photographs. Exhibits 5, 6, 7, 8 and 9 were then offered (articles of clothing)- and received. Objection was made to 5 (slip) and 6 (panties) on the claim of alteration by the Police Laboratory due to a chemical stain which defendant’s counsel said might give the jury the false impression that colored spots on these garments was blood. However, when the court said he would state to the jury that this was a chemical stain and not blood, defendant’s counsel said he would withdraw his objection. This statement was made so the issue as to Exhibits 5 and 6 is eliminated.

Exhibits 7, 8 and 9 were defendant’s hat, pants and shorts. Defendant’s objection as to them was: “The objection is that they would be requiring the defendant to testify against himself, that there is no showing that they were voluntarily given to the police department, there is no showing that they were procured as a result of a search warrant, and the evidence shows that they were in the possession of the defendant, and to use that would be requiring the defendant — would be invading the constitutional rights and requiring him to testify against himself; it would be a violation of his constitutional privileges.”

The record shows no motion to suppress. The hat and pants were identified by the prosecuting witness as resembling those worn by defendant at the time of the assault. The hat, pants, shorts were taken from defendant after his arrest and his identification by the prosecuting witness. Tests at the Police Laboratory showed presence of seminal fluid on Exhibits 5, 6 and 8 but the test on Exhibit 9 (shorts defendant was wearing when arrested) was negative. Under our rulings in State v. Johnson, Mo.Sup., 286 S.W.2d 787, 792, and State v. Pruett, Mo.Sup., 342 S.W.2d 943, 945, and cases cited in those cases, we hold that Exhibits 7 and 8 were properly admitted. Exhibit 9 proved nothing and so was immaterial but under the circumstances, its admission could not have been prejudicial.

We have examined the record as required by Rule 28.02, V.A.M.R., and find no error respecting the sufficiency of the indictment, verdict, judgment and sentence.

The judgment is affirmed.


source: Caselaw Access Project

author: HOUSER, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Robert BROWNRIDGE, Jr., Appellant.
    No. 48607.
    Supreme Court of Missouri, Division No. 1.
    Feb. 12, 1962.

      Joseph B. Moore, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., Theodore C. Beckett, Sp. Asst. Atty. Gen., for respondent.
   HOUSER, Commissioner.

Robert Brownridge, Jr., was charged by indictment and convicted by a jury of the crime of forcible rape. Section 559.260, RSMo 1959, V.A.M.S. The trial judge found the fact of prior conviction, sentence and imprisonment on previous felony charges under the Habitual Criminal Act, Section 556.280, RSMo 1959, V.A.M.S., and fixed the punishment at imprisonment in the penitentiary for 99 years. Defendant’s counsel prepared and filed a motion for new trial, which was overruled. After the pronouncement of judgment defendant appealed to this Court.

The state introduced evidence of these facts: On July 29, 1960 at 1 or 1:30 o’clock a. m. in Forest Park in the City of St. Louis appellant, one Joe Henry Brooks and one Thomas Allen approached a parked car in which prosecutrix, a 26-year-old married woman, and one William Rueh-mann were sitting. One of the three men said “What are you doing out at 1:30 in the morning with this bitch?” Appellant displayed a pistol. The occupants were forced out of the automobile. Directly across the street there was a street light. Prosecutrix could see the faces of all the men clearly. At gun point appellant forced prosecutrix and Ruehmann away from the place where the car was parked. With his fist appellant hit Ruehmann, reached into his- pockets, took out his pocket change and asked if he had any other money. Ruehmann said he had a wallet in the car. The men took Ruehmann’s Timex wrist watch with- a black band. Allen took prosecutrix 100-150 feet away from the group, down a hill, threw her to the ground, and tried without success to have sexual intercourse with her. Then through Allen’s and appellant’s combined efforts her panties were removed, and appellant had a complete act of intercourse with her, without her consent, against her will, and in spite of her resistance. The intimate details appear in the transcript and need not be restated in this opinion, except to say that when prosecutrix screamed appellant placed both hands on her throat, choked her and struck her in the face. Ruehmann ran, was caught by Brooks, beaten and brought back. One of the men told Brooks to use a knife on Ruehmann. Then appellant held prosecu-trix’ legs while Allen had intercourse with prosecutrix. Appellant thereafter tried to kiss prosecutrix, and said “Give me some tongue.” Appellant removed her gold wrist watch, with an expansion band. Then Allen and appellant held prosecutrix’ legs while Brooks had intercourse with her. The three then quit and went toward Ruehmann’s car. Prosecutrix and Rueh-mann hid in the nearby underbrush. Several minutes later they saw another car ■come up and shine its headlights on Rueh-mann’s car. Fearing that the newcomers were confederates, prosecutrix and Rueh-mann fled through the trees and underbrush and by way of the bridle path to the Express Highway, where they hailed a police patrol car and reported what had happened. Another patrol car was summoned. They re-entered the park and went to Ruehmann’s car. Ruehmann’s wallet was missing. Officers in another patrol car had seen three negro men in the park, running north in the vicinity of Rueh-mann’s parked car. The police gave chase, ■calling for them to stop, and fired a warning shot. The three men stopped, turned, faced the light, and then fled. Two escaped, hut one (Brooks) was arrested. He was •carrying a knife. A few minutes later the .arresting officer encountered the victims, who were then in the police cruiser. Prose-cutrix and Ruehmann saw and identified Brooks as one of their assailants. In ■effecting their escape appellant and Allen forcibly took an automobile belonging to ■one Wilford Adams, parked in front of Deaconess Hospital near Forest Park. Several hours after the robbery appellant gave his cousin a Timex watch with a black hand, a lady’s gold wrist watch with an expansion band, and a pistol, all in a paper hag, with instructions to hold them for appellant. Later the cousin delivered the paper bag and its contents to appellant. Allen was arrested at his place of work the following day. Shortly thereafter Allen was identified by prosecutrix, Ruehmann .and two policemen, as one of the persons observed by them in Forest Park the previous night. Prosecutrix saw and identified Brooks and Allen at the police station the next day. Appellant did not report for work on the day after the attack. On July 30 appellant was arrested by the FBI in East St. Louis, Illinois. A search disclosed a loaded .32 caliber pistol on his person, similar to that used in the rape-robbery. When appellant was arrested prosecutrix went to the police station, where she saw and positively identified him. The officer who arrested Brooks at the scene identified Allen and appellant as the two men who escaped in the park. Appellant had previously been convicted and served sentences for larceny of a motor vehicle, larceny from the person, rape and carrying a concealed weapon.

Appellant took the stand, admitted the previous convictions, admitted that he participated in the robberies of Ruehmann and prosecutrix, his use of the pistol, and that Brooks and Allen attacked prosecutrix. He testified as to the arrival of the officers, the flight, the firing of shots by the officers, his escape, and his forcible taking of the Adams automobile. He denied that he took part in the rape, and claimed that after robbing Ruehmann he told Brooks and Allen “to leave the lady alone.” He could see prosecutrix lying on the ground, with either Brooks or Allen “trying to molest her.” Appellant further testified that when the police arrived he went to Ruehmann’s car, intending to drive it away, but there were no keys in it. He shouted to the other men, and the three ran, encountering policemen at the Art Museum, where shots were fired. Appellant admitted that when arrested he lied by denying he was in Forest Park that night and stating he had never seen Ruehmann or prosecutrix.

Appellant having filed no brief we will examine one by one the eleven assignments of error contained in appellant’s motion for new trial.

There was no deprivation of the constitutional rights of appellant, a negro, in the selection of the jury by reason of the fact that there were 56 Caucasians and only 4 negroes on the petit jury panel. There was no showing of any systematic or intentional exclusion of members of appellant’s race or selection of the jurors on racial grounds. See in this connection State v. Logan, 344 Mo. 351, 126 S.W.2d 256, 122 A.L.R. 417. The lack of proportional representation of races on a jury panel does not constitute purposeful dis-criminátion. Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692; Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839. Proportional representation is not required. United States v. Charles Kazuyuki Fujimoto, D.C.Hawaii, 1952, 105 F.Supp. 727; Anno., 1 A.L.R.2d 1291, § 11, p. 1316.

The -infliction of a 99-year sentence, although severe, did not constitute cruel and unusual punishment within the inhibition of Article I, Section 21, Constitution of Missouri, 1945, V.A.M.S. A punishment is not cruel and "unusual because of its duration unless so disproportionate to the offense committed as to shock the moral sense of all reasonable men as to what is right and proper under the circumstances. 15 Am.Jur. Criminal Law, § 535. A punishment is not cruel simply because it is severe. State v. Stubblefield, 157 Mo. 360, 58 S.W. 337, 339. The acts of appellant were- so abhorrent and the circumstances so shocking that the severe -punishment inflicted was fully justified.

Appellant’s rights were not invaded by failing to cause the jury to assess the punishment, nor is the Habitual Criminal Act, Section 556.280, RSMo 1959, V.A. M.S., under which the judge and not the jury assessed the punishment, unconstitutional for the assigned reason that it deprived appellant of the right of trial by jury. These same questions recently have been settled contrary to appellant’s contentions. State v. Wolfe, Mo.Sup., 343 S.W.2d 10, and cases cited, certiorari denied 366 U.S. 953, 81 S.Ct. 1912, 6 L.Ed.2d 1246." Section 556.280, supra, does not violate the Sixth Amendment to the Constitution of the United States, as claimed. That amendment has no application to trials in state courts. It applies only to trials in federal .courts. Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595.

A page by page review of the transcript .fails to reveal anything which in any manner substantiates appellant’s general and unsupported charge that the trial judge was: prejudiced against appellant, “as exhibited ■by his mannerisms during the trial which might have indicated to the jury that the Court believed the defendant to be guilty prior to the completion of the evidence in the case.”

Appellant was .not prejudiced by the admission in evidence of other offenses: committed by appellant on the occasion in question (robbery of prosecutrix and her companion, and theft.of a motor vehicle). These offenses were properly shown for the purpose of proving the identity of appellant. On cross-examination appellant admitted that when first, arrested he denied his presence at Forest Park at the time-of the rape and denied that he had ever seen prosecutrix.

There was no error in admitting evidence that appellant had in his possession a pistol similar to State’s Exhibit No.. "15 at the time of the commission of the-rape, or in introducing this exhibit before-it was shown to have been in his possession. On cross-examination appellant admitted that Exhibit No. 15 was the gun he had with him at the time of the crime. It was-introduced in evidence and identified by other witnesses as similar to' the one appellant had in his possession, at the time-of the rape. The pistol was clearly admissible to show availability to the accused of-the means of committing the crime in the-manner in which it was shown to have-occurred, and to assist in showing the manner in which it was committed. State v. Pruett, Mo.Sup., 342 S.W.2d 943; State v. Richetti, 342 Mo. 1015, 119 S.W.2d 330; 22A C.J.S. Criminal Law § 712.

Nor did the court err in admitting in evidence the large aerial photograph of a section of Forest Park. The photograph was of assistance in aiding witnesses in their descriptions of the occurrences which took place at the scene of the crime and during appellant’s flight from the scene. 23 C.J.S. Criminal Law § 852(1) and § 853 (1).

Appellant’s charge that Instructions Nos. 2, 3, 3-A, 4 and 5, “when read as a whole * * * do not inform the jury as to the facts to be found before it can convict the defendant as charged in the indictment” is without any foundation. The instructions properly “defined the elements of the crime of rape as charged in the indictment.” Instruction No. 2 was a proper instruction with reference to the commission of a crime by two or more persons acting jointly, aiding and abetting, etc. Instruction No. 3 required a finding of the forcible ravishing of prosecutrix, and that she was a woman over the age of sixteen years, in the language of the indictment, which charged forcible rape in the language of Section 559.260, RSMo 1959, V.A.M.S. The words “unlawfully,” “feloniously,” “forcibly ravish,” “carnally know,” and “sexual intercourse,” as used in the instructions, were each carefully and properly defined in approved form. Instruction No. 3-A, relating to the elements of utmost resistance and putting in fear, was a proper statement of the law. Instruction No. 4 properly cautioned the jury with respect to the three indispensable elements of rape: assault and sexual intercourse, i. e. penetration, properly defined; penetration by force and against the will of the woman; lack of consent and utmost resistance. Instruction No. 5 more fully defined the term “forcibly” and more fully declared the effect of threats of bodily harm upon the overcoming of the volition of a woman. Proper instructions on the presumption of innocence and the state’s burden of proof were given.

We have examined the indictment, verdict, judgment and sentence, under the requirement of Rule 28.02, V.A.M.R., and find them sufficient in form and substance.

The judgment is affirmed.

COIL and HOLMAN, CC, concur.

.PER CURIAM.

The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.

All of the judges concur.


author: COIL, Commissioner.

text:
    STATE of Missouri, Respondent, v. Marjorie TISDALE, Appellant.
    No. 48696.
    Supreme Court of Missouri, Division No. 1.
    Feb. 12, 1962.

      Philip Eveloff, St. Joseph, for appellant.
    Thomas F. Eagleton, Atty. Gen., James J. Murphy, Asst. Atty. Gen., for respondent.
   COIL, Commissioner.

A jury convicted Marjorie Tisdale of murder in the second degree and fixed her punishment at ten years in the Department of Corrections. She has appealed.

The state made a submissible case by adducing evidence which tended to show these facts. Marjorie, 37, and her mother, 74, occupied the same house in St. Joseph. There was a gangway about three feet wide separating the north wall of their house and the south wall of the next house to the north. Mrs. Tisdale, the mother, was paralyzed on her right side and during the days usually occupied a divan close to a north window.

During the afternoon of August 19, 1960, some of the neighbors in the house to the north were playing cards at a kitchen table located about 12 feet from the Tisdale’s north window. They heard Marjorie call her mother vile names and tell her to get up and walk. They heard the mother answer that she could not walk and ask Marjorie to let her alone and heard her cry and moan. They heard sounds as of one person slapping another. Those events covered a period of about 15 or 20 minutes. Shortly thereafter, they, as well as another neighbor, saw Marjorie throwing automobile parts, fenders and radiators which were on the Tisdale front porch, out onto the street so that it was partially blocked for automobile traffic. At that time, the dress she was wearing was covered with blood.

Police officers who arrived about 5:15 found Mrs. Tisdale, the mother, lying on the floor in a pool of blood, with bruises and marks on her body and both of her eyes black. They found that a large vase or lamp had been broken and, as they began to move her, a piece of glass fell from her hair onto the floor. About three feet from her was a brick with human blood and hair on it.

A pathologist who examined the body at 6:30 testified that Mrs. Tisdale had sustained a small contused laceration of the scalp, many large bruises on her face involving both eyes and extending over the area of both cheeks, hemorrhages of the thin membrane over the eyes, many small lacerations of the chin, small cuts on the face, a small cut on the upper lip, a laceration of the right ear and one of the nose, small bruises and lacerations on the neck, bruises of various sizes over the surface of her chest, a bruise on each shoulder, a small bruise on the right mammary gland, large bruises on both forearms and hands, and a recent abrasion on each hand. There were extensive hemorrhages beneath the scalp. The second cervical vertebra had been fractured with dislocation, and the spinal cord had been macerated or mashed. In the opinion of the doctor, death was due to a fracture dislocation of the second cervical vertebra with acute compression of the spinal cord or, in common parlance, a broken neck. The injury received would have required a severe blow but could have been produced by one applying force by means of a brick.

Defendant denied hitting her mother and explained her mother’s injuries as having been sustained when the witness was assisting her to the bathroom; her mother fell, hit her head on a table and broke a vase or lamp. Marjorie testified that no other person was present during the occurrence involving the injuries to her mother.

Considering as true the evidence favorable to the state and the favorable inferences reasonably to be drawn therefrom, and rejecting evidence to the contrary, it is clear that there was substantial evidence from which the jury reasonably could have found that defendant was guilty of murder in the second degree.

Defendant has filed no brief and, consequently, we examine the three assignments of error in her motion for new trial. The first and second assignments were, respectively, that the “verdict of the jury was against the weight of the evidence” and that instructions “2, 3, 4, 5, 6 and 7 given in behalf of the State were erroneous and improper.” Each of the foregoing assignments is too general to preserve anything for appellate review. State v. Roberts, Mo., 332 S.W.2d 896, 898 [2-5]; State v. Brewer, Mo., 338 S.W.2d 863, 868 [9, 10].

Defendant’s third new trial assignment was that the court “erred on the voir dire examination of all prospective jurors in this cause, in that the Court permitted said jurors to invade the province of the Court by passing upon their own qualification to afford the defendant a fair and impartial trial.” The voir dire examination referred to in the foregoing assignment is not in the transcript before us and, consequently, the alleged error may not be reviewed. State v. Thompson, Mo., 299 S.W.2d 468, 472 [6].

We have found no prejudicial error in connection with those matters which we review upon the record before us even though defendant has made no allegation of error with respect to them.

The judgment is affirmed.

HOLMAN and HOUSER, CC., concur.

PER CURIAM.

The foregoing opinion by COIL, C., is adopted as the opinion of the court.

All concur.


text:
    In re ESTATE of William Henry SMITH, Deceased. Wayne SMITH, Appellant, v. Homer KEMP et al., Respondents.
    No. 48812.
    Supreme Court of Missouri. Division No. 1.
    Feb. 12, 1962.

      Don C. Carter, Sturgeon, for appellant.
    W. C. Whitlow, Clyde R. Boyd and J. R. Baker, Fulton, for respondents.
   HOUSER, Commissioner.

This is an appeal from a judgment of the Circuit Court of Callaway County reversing a probate court judgment (1) revoking letters of administration previously granted in the Estate of William Henry Smith, Deceased, (2) construing his will and (3) determining heirship.

William Henry Smith died leaving a will the pertinent provisions of which follow: ■“The natural objects of my bounty are my full sister, Stella * * *, and my half-sister, Cora * * *. I do not wish my half-sister, Cora * * * to receive or take any part or share of my estate * * *. To my sister, Stella * * * I give, bequeath and devise all of my property absolutely, be it real, personal or mixed of every kind and character and wherever situated. I hereby nominate and appoint my sister, Stella * * * executrix of this my last will and testament * * * without * * * bond * * The will contained no residuary clause. Stella predeceased the testator. She left no lineal descendants. Cora survived the testator and is still living. Cora has four children, to whom she has assigned her interest in the estate. William Henry Smith never married. He left surviving him no child or children, father, mother, brother or sister, or their descendants, except the half-sister Cora, and Cora’s descendants, and no grandfather or grandmother. He did leave surviving him numerous descendants of seven deceased uncles and of one deceased aunt.

William Henry Smith’s will was probated. The named executrix (Stella) having died before testator, the probate court appointed Homer Kemp as administrator of ,the estate, on Kemp’s representation that testator was survived by ■ four nieces and nephews, all nonresidents of Missouri. Thereafter Wayne Smith, a cousin of deceased, filed a renunciation of the right to administer signed by all other cousins of deceased, and a petition to set aside the order appointing Homer Kemp, with the request that he, Wayne Smith, be appointed as administrator. The probate court, construing the will, found that Cora was disinherited thereby and that she had no inheritable interest in the estate; that the nieces and nephews had no interest in the estate; that William Henry Smith died intestate, and that the nearest and next of kin entitled to inherit the estate were the cousins of deceased. Accordingly the probate court set .aside Kemp’s appointment and appointed Wayne Smith as administrator. On appeal the circuit court reversed this judgment, holding that William Henry Smith died intestate, since the provision for Stella lapsed by her predeceasing testator, there was no ' residuary clause, and no provision for the disposition of the estate in case of the death of Stella prior to testator’s death; that Smith left no lineal descendants, and no father, mother, brother, or sister, or their descendants, except his half-sister Cora, who as sole heir was entitled to the estate by intestate succession, and that her assignees .are-now entitled to the estate; that neither Wayne Smith nor any of. deceased’s cousins was entitled to share in the estate; and overruled the petition to remove Homer Kemp as administrator. Wayne Smith appealed.

We have jurisdiction because the record reveals that William Henry Smith died seized of real estate which his will undertook to dispose of contrary to the laws of devolution of real estate in the event of intestacy. Title to real estate, therefore, is involved and jurisdiction of the appeal lies in this Court. Constitution of Missouri, Art. V, § 3, V.A.M.S.; Morton v. Simms, Mo., 263 S.W.2d 435.

The provision of the will by which William Henry Smith sought to disinherit his half-sister Cora would not defeat the right of Cora to inherit the estate as an heir unless Stella, the person to whom he undertook to devise and bequeath his entire estate, was alive at the time the will took effect. Where a devise and bequest fails for any cause the heir will inherit under the laws of intestate succession, notwithstanding an express provision in the will that the heir not take any part of the estate. Mere words of disinheritance are not sufficient to effect disinheritance; there must be an effective, valid devise in order to cut off the right of the heir to inherit. “ * * * [I]n order to deprive the heir of his inheritance, it must not only appear from the will that the testator did not intend him to take any portion of the estate, * * * but the will must also give the property to some one else.” Meiners v. Meiners, 179 Mo. 614, 78 S.W. 795, quoted with approval in Smoot v. Harbur, 357 Mo. 511, 209 S.W.2d 249, 252. Valliant, J., stated it this way in Hurst v. Von de Veld, 158 Mo. 239, 58 S.W. 1056, 1058: “Although the intention of a testator to disinherit his heir be clearly expressed, yet, unless the will makes other disposal of his property, it goes to the heir, not by force of the will, but by force of the law of inheritance,” and again in Hadley v. Forsee, 203 Mo. 418, 101 S.W. 59, 61, 14 L.R.A.,N.S., 49: “The testator may say in his will that he gives him [an heir] $1, and he is to have no more of the estate; yet, unless the testator wills the property to some one else, the heir will take it under the statute of descents.” The latest expression of this rule by this Court is in In re Fowler’s Estate, Mo., 338 S.W.2d 44, 49: “Neither, of course, would the fact * * * that testator did not intend that some of his heirs should share in his estate in any manner have any bearing upon the disposition of that portion as to which he died intestate. When he died intestate as to a portion of his property * * * such heirs take under the law of descent and distribution, irrespective of his intention or wish.” (Emphasis ours.)

William Henry Smith attempted by will to make an effectual “other disposal” of his 'property, but failed to accomplish his purpose. The devise and legacy to his sister Stella lapsed, and the lapse was not prevented by Section 474.460 RSMo 1959, V.A. M.S. “An heir at law who has been disinherited by a will is not prevented from sharing in the testator’s property in case a legacy or devise has failed by lapse.” Thompson on Wills (3d ed.), § 562, p. 787. Because of the lapse, and the fact that there was no substitutional or residuary clause which would have provided for the actual situation existing at the time of his death, Smith died intestate. His property therefore necessarily descended to his heir, Cora, Section 474.010(2) (b), RSMo 1959, V.A. M.S.; Gregory v. Borders, 345 Mo. 699, 136 S.W.2d 306; and goes by assignment to Cora’s children.

The doctrine of the Meiners, Smoot, Hurst, Hadley and Fowler cases is the rule in the great majority of the states. 2 Page on Wills (Lifetime ed.) § 929, p. 857; 1 Jarman on Wills (8th ed.), p. 335; Thompson on Wills (3d ed.) § 562, p. 787 ; 96 C.J.S. Wills § 718, fns. 37, 38; Idem. § 1225 (2), p. 1073, fn. 64; 57 Am.Jur., Wills, § 1170.

Appellant emphasizes the strong expression of intention to disinherit Cora, and relies heavily on the statute, Section 474.430 RSMo 1959, V.A.M.S., which directs that courts have due regard to the directions of the will, and the true intent and meaning of the testator. But no matter how strong the testator’s intention to disinherit an heir may be expressed in a will, that intention cannot be given any effect as to intestate property. The negative admonition applies only to property passing under the will. The only method of disinheriting such an heir is for testator to effectively give the property to someone else. 57 Am.Jur., § 1170, p. 766.

Appellant quotes from 26A C.J.S. Descent and Distribution § 43, p. 589 in support of the proposition that where a person leaves a will but dies intestate as to a part of his property that part passes to his heirs or next of kin under the law of descent and distribution in the absence of anything in the will indicating any intention that a particular person should be barred from sharing in the intestate property. The first sentence in said § 43 is more nearly apposite: “While the operation of the law of descent and distribution may be defeated by a will, as discussed supra § 2, the rights conferred by the intestate laws are only taken away by a will which effectually disposes of the entire estate of the decedent.” (Emphasis ours.) The will must not only purport to dispose of the property, but must actually operate to dispose of the property, under the facts existing at the time the will speaks. Appellant quotes a headnote found at 96 C.J.S. Wills § 1226, p. 1081, but this relates to cases of partial intestacy where the will contains a residuary clause which lapses, but the testator expressed some other intention with respect to the disposition of the property, a situation not found here.

Appellant cites Wyatt v. Stillman Institute, 303 Mo. 94, 260 S.W. 73, 75, and Compton v. McMahan, 19 Mo.App. 494, 500, for the proposition that an ancestor, by will, may interrupt and interfere with the course of the law of descent and distribution, and control the devolution of his property. This general proposition, while true, does not control this situation.

Appellant cites Cattell v. Evans, 301 Mich. 708, 4 N.W.2d 67; LaMere v. Jackson, 288 Mich. 99, 284 N.W. 659, and Strauss v. Strauss, 363 Ill. 442, 2 N.E.2d 699, 105 A.L.R. 1386, in support of the proposition that a testator, by will, can preclude an heir from participating in his intestate property. If Cattell v. Evans, on its different facts, supports appellant’s position it is not consistent with later rulings by the Michigan Supreme Court, for in 1959 that Court said “We agree that the strong language of the disinheritance clause does not determine this case. If the will fails in whole or part, the legal heirs take by law of intestacy even against the expressed opposition of the testatrix.” In re McKay’s Estate, 357 Mich. 447, 98 N.W.2d 604, 606. LaMere v. Jackson was specifically overruled in the recent case of In re Brown’s Estate, (1960), 362 Mich. 47, 106 N.W.2d 535, 537, in which the Michigan Supreme Court adhered to the general rule that a testator cannot “limit or eliminate an heir from receiving that portion of an estate governed by the statute of descent and distribution except by disposing of the property by will.” Strauss v. Strauss seems to contravene the general rule in Illinois, stated in Tea v. Millen, 257 Ill. 624, 101 N.E. 209, 45 L.R.A.,N.S., 1163, as pointed out in the dissenting opinion of Farthing, J. in the Strauss case.

The judgment is affirmed.

COIL and HOLMAN, CC., concur.

PER CURIAM.

The foregoing opinion by HOUSER, C, is adopted as the opinion of the court.

All of the Judges concur.


author: HOLLINGSWORTH, Judge.

text:
    STATE of Missouri, Respondent, v. Lawrence EDWARDS, Appellant.
    No. 48866.
    Supreme Court of Missouri, Division No. 1.
    Feb. 12, 1962.
    William A. Johnson, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., Pendle-ton Goodall, Jr., Sp. Asst. Atty. Gen., for respondent.
   HOLLINGSWORTH, Judge.

Defendant was charged under the Second Offense (Habitual Criminal) Act with the crime of burglary in the first degree by breaking into and entering the dwelling house of another, in which there was at the time a human being, with intent to steal, as that offense is defined in Section 560.040 RSMo 1959, V.A.M.S. (to which revision all statutory citations herein refer). Upon trial by jury, he was found guilty as charged. The trial judge, after hearing evidence out of the presence of the jury in compliance with the provisions of § 556.280, found beyond a reasonable doubt that defendant had been convicted of the prior felonies alleged in the information and assessed his punishment at imprisonment in the penitentiary for a term of ten years. He has appealed from the judgment and sentence imposed in accordance with the verdict of the jury and the punishment assessed by the court. Although represented by court-appointed counsel at the trial, no brief has been filed in his behalf in this court. We, therefore, review all valid assignments of error set forth in the motion for new trial, as required by S.Ct. Rule 27.20, V.A.M.R., and the portions of the record .required by S.Ct. Rule 28.02, 4 RSMo 1959, V.A.M.R. A brief summary of the evidence adduced in behalf of the State will suffice for these purposes.

It warrants a finding of the following facts: On March 2, 1961, Charlesetta Per-nell and her seven children, whose ages ranged from two to ten years, resided in a 4-.room dwelling house at 3634 Aldine, in the City of St. Louis. The two entrances thereto, front and rear, consisted of wood frame doors, each with a pane of glass in the upper portion. About 11:00 p. m., Mrs. Pernell locked the doors and windows of her home and she and the children retired for the night. About 2:00 a. m., she was awakened and saw the form of a man standing by her 7-year old daughter’s bed. Mrs. Pernell got out of bed, turned on a light and observed the features and clothing of the man. He ran through the bedroom occupied by her and her daughter, grabbed a cocktail table and with it broke the glass pane from the front entrance door, through which he escaped. As he ran from the room she saw a scar on the back of his neck and also further observed his clothing. She called the police and they appeared in 10 or 15 minutes. She said that the man was a short, colored man and she delivered to them the hat that fell from his head as he escaped through the front door and advised them that he wore a dark leather jacket, grey pants and a peculiar type of shoes. Search of the premises showed that the refrigerator and Mrs. Pernell’s purse had been opened and that the glass pane had also been broken out of the rear entrance door, through which the man had gained entrance into the home. The police immediately went in search of the man and found defendant walking along the street within a block or two of Mrs. Pernell’s home. He wore no hat and was dressed as described to the police by Mrs. Pernell. He also had a fresh, bloody scratch on his right wrist. Within ten minutes the police returned with him to Mrs. Pernell’s home. She-there positively identified defendant as the man who had entered and run from her home; and at trial, she again so identified' defendant.

The motion for new trial sets forth four assignments of error. The first is that the court erred in permitting the State to interrogate police officers as to whether the hat found in the Pernell home fit the defendant. The transcript shows that on direct examination one of the police officers was asked if the hat in evidence “fit” defendant. The court promptly sustained defendant’s objection. The officer was asked: if it appeared to fit defendant. Again an objection of defendant was promptly sustained. The officer was then asked what he saw when he observed the hat, after it had been placed on defendant’s head. He replied it “appeared to fit the man.” Again, an objection was sustained and the answer was stricken. Finally, the officer testified without objection that the hat “did not go down over his ears, * * * it stood on his head like a normal hat would.” There-the matter ended. The court fully complied with every request made by defendant. The conduct of neither counsel for the State nor the police officer appears to have been a willful attempt to inject incompetent evidence into the case. Indeed,, it is questionable whether the answers given were erroneous. It is difficult to convey-the meaning that a hat (or a glove or a-, shoe) “fits” a certain person other than to-so state. But assuming the questions to call for and the answers to constitute technically objectionable conclusions, yet the-prompt rulings of the court and defendant’s acquiescence in the sufficiency of that action dispels on appeal any reasonable finding of an abuse of the discretion vested in the trial court in ruling a matter of this nature. State v. Rhoden, Mo., 243 S.W.2d 75, 77-78; State v. McBrayer, Mo., 269 S.W.2d 756, 760.

The second assignment is that the-court “erred, * * *, in reminding the-State that it had forgotten to ask the State’s witness, Mrs. Perneil, as to whether any hat had been left at the premises alleged to have been burglarized. * * * ” The transcript of the trial proceedings does not reveal the contention made. However, a memorandum filed by the trial court in connection with ruling the motion for new trial states: “With respect to the second ground of the motion, anything which the Court said which served as a reminder to State’s counsel, whereupon he asked a question that he had overlooked or forgotten to ask, was said out of the presence of the jury and did not in any way interfere with the fairness of the trial.” No abuse of the court’s discretion is shown. The assignment is without merit and is overruled. State v. Kornegger, 363 Mo. 968, 255 S.W.2d 765, 769.

The third assignment is that the “verdict was against the weight of the evidence, particularly in view of the fact defendant’s fingerprints were found on no part of the premises alleged to have been burglarized, although the record clearly indicated that the alleged burglar had handled a number of items in said premises, including a lock at the back door, a refrigerator, a purse, and a table, and although the record clearly indicated that the alleged burglar wore no gloves.” The evidence adduced in behalf of the State was substantial and sufficient to support a finding beyond a reasonable doubt that defendant was guilty of burglary in the first degree as charged in the information and found by the jury. This court does not weigh the evidence beyond the necessity of determining whether a submissible case was made. State v. Sheard et al., Mo., 276 S.W.2d 196, 199; State v. Archer, Mo., 328 S.W.2d 661, 666.

The fourth and last assignment is that the “verdict was against the law.” The assignment is insufficient to present any matter for review. Rule 27.20, 4 RS Mo 1959, V.A.M.R.

The information is in due form. § 560.-040. The verdict is responsive to the issues and the punishment assessed by the court is within the limits provided by law. §§ 560.095, 556.280. Defendant was duly arraigned and entered a plea of not guilty. He and his counsel were personally present throughout all stages of the proceedings. He was granted allocution and the judgment is in due form of law.

The judgment is affirmed.

All concur.


author: DALTON, Judge.

text:
    STATE ex rel. Jo Ann WILKINS, a Minor, by Her Mother and Next Friend, Clotelle Wilkins, Plaintiff-Appellant, v. Ben S. MARKWAY et al., Defendants-Respondents.
    No. 48600.
    Supreme Court of Missouri, Division No. 1.
    Feb. 12, 1962.

      Albert J. Yonke, Kansas City, for appellant.
    Bond & Dominique, John O. Bond, P. Pierre Dominique, Jefferson City, for respondents Ben S. Markway and National Automobile & Casualty Co.
   DALTON, Judge.

This is an action for $50,000 actual and $50,000 punitive damages based upon the charge that in April 1955, Jo Ann Wilkins, a minor under the age of 17 years and confined in the Cole County Jail in Jefferson City, was unlawfully and criminally assaulted and sexual intercourse had with her on several occasions by defendant Man-kin, a deputy sheriff and jailer in charge of said jail; and that as a result of such intercourse she became pregnant and subsequently gave birth to a child on January 19, 1956, whom she has had to care for and support. The acts were charged to have been done by the sheriff and his deputy maliciously, wantonly, wrongfully and without just cause or provocation and that they constituted misconduct and abuse of official authority.

The action was brought in the name of the State of Missouri at the relation of Jo Ann Wilkins, a minor, by her mother and' next friend against Ben Markway, Sheriff of Cole County, his bonding company, National Automobile and Casualty Company of California, and Earl Mankin, a former-deputy sheriff and jailer for defendant; Markway. The penalty of the bond sued on was for $5,000 and was conditioned that Ben Markway, the duly elected Sheriff of' Cole County, Missouri, for a term beginning January 1, 1953, “shall faithfully and’ honestly discharge the duties of said office, then this obligation shall become void,, otherwise to remain in full force and effect.”

At the close of plaintiff’s evidence the-Court directed a verdict and entered judgment thereon for all of the defendants on the ground that plaintiff had failed to make a case for the jury. After her motion to., set aside the directed verdict and for a. new trial were overruled, plaintiff appealed-to this Court.

Defendant Markway’s official position as-Sheriff of Cole County during 1954, 1955. and 1956, the execution of the official bond in question, that Earl Mankin was duly appointed a deputy sheriff by Markway and; served as such, and that Jo Ann Wilkins,, a minor child, more than 16 years of age, was an inmate of the Cole County Jail from. October 27, 1954 to July 5, 1955, are admitted facts.

Plaintiff offered portions of a deposition, of defendant Markway tending to show that he was in charge of the Cole County Jail during 1954, 1955 and 1956; that he-had three deputies working under him, each one for an eight-hour shift; that Earl Man-kin’s shift was from 12 midnight to 8 a. m. during the spring of 1955; and that he let Mankin go in May 1955. As to why he let Mankin go, he said: “I had a report on this deal up there * * Markway did not say he asked Mankin to quit, but said: “We talked it over a little, I believe.” As to plaintiff’s pregnancy while in his jail, Markway said: “Well, looks that way she got pregnant while she was up there around the jail * * She was not out of the jail that he knew of. Each jailer had a set of keys to the cells and the tanks. The tanks had five cells and a hall. Male prisoners were not permitted to .go back to do any work in the part of the jail where plaintiff was held. Only the sheriff and his deputies had keys to the •cell block where plaintiff was held and no ■one else could get into that part of the jail.

Portions of a deposition of defendant Mankin tended to show that he was employed by the Sheriff of Cole County in 1955 as deputy sheriff and jailer; that he ■worked from 8 p. m. to 8 a. m.; that the ■colored women in the jail were separated .from the colored men and from the white •men; that doors separating the several parts of the jail were kept locked; that while plaintiff was a prisoner in the jail he had never seen her outside the jail building; and that so far as he knew she had not left the jail during her stay there.

Plaintiff’s testimony tended to show that ■she was born July 28, 1938; and that, when she was 12 years old, she had difficulty ■about going to school and was sent to the Little Blue Home, a school for juvenile boys and girls, in Kansas City. She ran away from that home the next year and was sent to the Tipton Training School for Negro girls in November 1951. In July 1953, she ran away from the Tipton Training School and returned to Kansas City, but was caught and returned to the Tipton Training School in November 1953. In June 1954 she was transferred to the women’s penitentiary in Jefferson City, apparently under the provisions of Sec. 219.230 RSMo 1949, V.A.M.S.

During the riot in the State penitentiary in October 1954, plaintiff started a fire in the women’s penitentiary and was later charged with arson and sent to the Cole County Jail on October 27, 1954. She was then 16 years old. She remained in the Cole County Jail until July 5, 1955, when she entered a plea of guilty to a charge of arson and was sentenced to two years’ imprisonment and sent to the women’s farm. She was released from the women’s penitentiary on November 3, 1956.

Concerning her imprisonment in the Cole County Jail, plaintiff testified that she and two other colored girls, Shirley Skinner and Shirley Kempker, were placed in a cell block containing six cells. There was a steel door at the end of the cell block which was locked at all times, except when meals were sent in. The deputy on duty had the key to this door. The only person who came into this cell block was the trusty who brought the food and who was always accompanied by a deputy. No man ever came into the cell block alone while she was there. There was a sort of hall in front of the cells and, after four or five months, the girls had the freedom of the cell block and this hall.

In April 1955, Earl Mankin was the deputy on duty from midnight until 8 a. m. On one occasion in April 1955, sometime after midnight, Mankin, and a trusty named Jim, brought a white girl to the cell block and locked her up and took plaintiff and Shirley Kempker downstairs to the office on the first floor, where Mankin sent Jim out to get coffee for the men and cokes for the girls. Mankin then sent Shirley Kempker down the hall to another room, but she was not locked up. Mankin was more friendly than usual and he appeared to have been drinking. He smelled of alcohol and his face appeared flushed. After the trusty left, Mankin started to pat the plaintiff’s bottom and to feel of her. At that time plaintiff was 16 years of age and weighed about 120 pounds. Mankin asked plaintiff when she had last had intercourse with a man and, after she told him, he asked if she wouldn’t like to have intercourse again and she said “No.” Mankin then proceeded to unfasten the zipper on her pants, but the trusty came back and gave the coffee to Mankin, a coke to plaintiff and took a coke to the room where Shirley had been sent. After some five minutes Mankin locked Shirley up (it does not appear where) and he then locked plaintiff in the “hole” or “hold,” a room on the first floor with four bunks in it. Mankin then went away, but later he came back to the “hole” and unlocked the door, opened it and came in where she was seated on the bed and again began talking to plaintiff about having intercourse with' him. He asked if she wouldn’t “enjoy it because it had been so long.” He felt of her and asked her for a kiss. When she protested, he did not try to force her. He then unfastened her pants and took them off and pushed her back on the bed and had sexual intercourse with her. When he had finished he told her not to tell anyone about what had happened, that she had better not tell anyone or she would not get out of the “hole.” He did not remove his clothes on this occasion, only unbuttoned his pants. He again locked her in the “hole” and left her, but the next morning plaintiff was released from the “hole” and taken back upstairs by another deputy. Shirley was already up there. Plaintiff asked to see Prosecuting Attorney Riley on the day following the occurrence and told him about what had happened.

On cross-examination concerning this first occasion, she testified that Mankin patted her on her bottom and hips and put his hand inside her waist and unfastened her jeans by the zipper on the side. She did not have any panties under the blue jeans. On this first occasion when Mankin unfastened her pants, unbuttoned and unzipped them, he did not get them down, because plaintiff was holding them up and resisting. She protested, but did not yell or scream, because there was no need in yelling. She said that to protest was the only thing she could do at the time. She protested, and said “No,” and was trying to hold up her pants with her hands, as that was all she could do. It was night time and there were no lights in the room, but there was “a little bitty light in the top of the wall.” Mankin came into the room where he had locked her up and started talking again as he had in the office. After he came in the room,, she closed the door to the “hole,” but she did not know whether Mankin locked it. It was a solid door with no windows and there were no windows in the “hole.” He again asked her if she didn’t want a man and if she didn’t think it would be fun and she answered “No” to both questions. Mankin sat on the bed beside her and pushed her back on the bed. He didn’t get her blue jeans completely off. She was small and was no match for him. He was on top of her when he finally got one leg out of her pants. She said she did not want to do “it,” she protested, but did not yell because it wouldn’t have done any good. There was no one to call on for help, except the deputy who was making the attack. The other inmates of the jail could not have heard her and it wouldn’t have mattered with the trusty, since he was trying to do the same thing to the other girl in another room. So Mankin went right ahead, but she did not cooperate with him. She just lay there and let him do “it,” because she couldn’t move. As to not making much physical effort to protect herself, she said: “ * * I was quite small at that time, and I was no match for him, for a man his size. And I had learned by then that it wouldn’t do no good to scream anyway. * * * so I didn’t. * * * when he sat on the bed he pushed me back on the bed, and him being bigger than me, there was no way I could get out from under him.”

Two or three nights after the first occurrence Mankin again came to the third floor cell block and told plaintiff the neighbors were complaining about the noise and he took her down to the “hole” on the first floor and locked her in the “hole” and left. The other girl was left in the cell block upstairs. Mankin came back to plaintiff in about 30 minutes. Plaintiff wore panties, a brassiere and a dress. She was •sitting on the bed when Mankin came in where she was. He had some vaseline in his hand. He wanted her to use it and she refused. He pushed her back on the bed and put the vaseline on her private parts and had sexual intercourse with her. At the time Mankin had intercourse with her, he did not have any clothes on •and he had taken off her panties. When he left, Mankin again told her she had better not tell anyone and if she did he wouldn’t let her out of there. He also told her he was going on a vacation and it would do no good, because she wouldn’t see him any more. However, she did tell defendant Markway of the incident, but he said she was telling a lie.

On cross-examination as to this second occurrence, she said that Mankin returned with vaseline within 5 or 10 minutes after he took her downstairs and locked her up in the “hole.” He came in and sat beside her and then removed all of his clothing. That conduct gave her some idea of what he had on his mind and she knew what he was going to try to do. He then took off her panties and ripped them on the side in removing them. He took them off against her wishes, and while he was naked and in bed with her. She tried to hold her legs together, she tried to get out of the bed and she tried to keep her panties on. She also resisted his efforts to use his hands in applying the vaseline. She did not scream or holler at any time, because it would have done her no good. She also said she had learned by then that there was no use to scream, so she did what she could. She could not jump out of the bed because Mankin was on top of her and she was too small for him.

She said that the first person she told after this second intercourse was defendant Markway, after Mankin had left and after she had discovered that she was pregnant, but that she did tell Mr. Riley before she discovered she was pregnant. Later, she said she was confused; that Markway was the first one she told about “it”; that she had told Markway about the last occurrence the next day after it happened; that she told Markway the first day after Mankin quit working, which was the next day after the last assault. She did not then tell him of the first assault. Later she said she first mentioned Mankin when she told Riley of the occurrence.

Plaintiff further testified that she did not try to bite Mankin or scratch him on either occasion; that she gave him trouble, but his weight was too heavy for her; and that she tried, but couldn’t move very well. She said: “We struggled on the bed and he overcome me. After all, he is a man, I was a kid.”

Plaintiff’s child, a 7 pound, 7 ounce boy, Was born at St. Mary’s Hospital in Jefferson City on January 19, 1956, after a full-term pregnancy of 40 weeks. A few days after the birth of the child she was again returned to the women’s farm where she remained until she was released from the women’s penitentiary on November 3, 1956. Plaintiff said she had never had sexual relations with any man except Mankin while she was in the penitentiary or in the Cole County Jail. The pregnancy in question was plaintiff’s second pregnancy. She had had a miscarriage after a pregnancy that had preceded the alleged assaults in question. She also testified that she had had a miscarriage since. She has never been married.

As to Mankin’s conduct toward plaintiff and the other colored girls the plaintiff testified that Mankin “usually curses us out”; that he had never attempted to strike her, but he was “always insulting to all of us”; that he seemed to have a particular feeling against Negro prisoners; and that she had heard him use the word “Nigger” more than once. Plaintiff said that Mankin had not called her down for cursing and yelling and hollering, because he did too much of that himself, but that she may have used obscene language, but she didn’t use it frequently.

As stated, each of the three defendants filed a motion for a directed verdict at the close of plaintiff’s evidence on the theory that plaintiff had failed to make a submissible case. The trial court sustained each of these motions, directed a verdict for defendants and entered judgment thereon. This action of the trial court is not referred to or assigned as error under appellant’s Points and Authorities. See Supreme Court Rule 83.05(a)(3) and (e), V.A.M.R.

Appellant’s first point is that “plaintiff made a submissible case on the theory that she was raped by the deputy jailer.” Appellant cites State v. Catron, 317 Mo. 894, 296 S.W. 141, 143 and State v. Moore, Mo.Sup., 143 S.W.2d 288, 289. These cases are cited on the issue of whether plaintiff offered the utmost resistance to Mankin. The factual situations in the Catron and Moore cases were totally different from the facts here. The woman in the Catron case was accosted at night on a highway and taken from her companion at pistol point and carried away by strangers and threatened with great bodily harm and, while so frightened and intimidated, she offered no physical resistance. In the Moore case the woman was choked and threatened with death and offered no physical resistance. Apparently, the Catron and Moore cases were cited only for certain statements of law contained therein.

In the Catron case the Court said: “If the record had shown merely an act of intercourse by force, the utmost resistance would probably have not been established. The record, however, develops further facts and circumstances, such as fear of personal violence, and we have held that the utmost resistance doctrine is not applicable to a state of facts where the female is put in fear of personal injury. State v. Barbour, supra. The amount of resistance necessary to annul consent depends on the uselessness of resistance. Neither actual physical force nor physical resistance is necessary, if the woman yields through fear caused by threats of great bodily harm or injury, for such is constructive force, deleting the necessity of the utmost physical reluctance and resistance, and constituting the intercourse rape, provided the threats are made previous to-the act.” State v. Catron, supra, 296 S.W. 141, 143(4); State v. Barbour, 234 Mo. 526, 137 S.W. 874.

In the Moore case the Court said: “ ‘A consent induced by fear of personal violence is no consent; and, though a man lay no hands on a woman, yet if by an array of physical force he so overpowers her mind that she dares not resist, he is guilty of rape by having the unlawful intercourse.’ Bishop, Criminal Law, 7th Ed., Sec. 1125.” State v. Moore, supra, 143 S.W.2d 288, 289.

Appellant argues that she was forced to have intercourse with Mankin against her wishes; that in determining the matter of consent and resistance the surrounding circumstances must be considered, to wit: that she was a 16-year old child entrusted to the deputy jailer for care and protection and safekeeping; that there was no use to scream or call, since none could come to her aid, as Mankin alone was in charge; that she had been an inmate of a penal institution and her experience had taught her the danger of punishment for disobedience; that it was manifestly useless to resist Man-kin’s advances; that she was small and young and he a man of superior physical power; that the act occurred in the “hole” where none could come to her aid; and that the tearing of her panties on the second occasion and her subsequent reports to Markway and Riley, all go to show that she did not consent, but offered the utmost resistance under the circumstances shown.

Appellant has properly directed attention to the essential and determinative issue in the case on the charge of rape, to wit: whether appellant’s evidence shows that the act of intercourse was performed without her consent and against her will.

In the case of State v. Catron, supra, 296 S.W. 141, 143, it appears that, “The phrases ‘against the will’ and ‘without the consent’ of the female, interpreted as equivalent terms, are defined as the manifestation of the utmost reluctance and the greatest resistance on the woman’s part.” (Italics ours.)

Let us review some of the facts appearing in this record. It is true that plaintiff was a child under 17 years of age, but she was no stranger to the act of sexual intercourse. She freely testified that she had previously been pregnant and had had a miscarriage. While, of course, a lewd woman may be raped, there were no objections here to plaintiff’s own testimony on direct examination as to these matters which bear upon the issue of consent and want of resistance. When solicited for intercourse, she did not hesitate to tell Mankin how long it had been since she had indulged; and when solicited in the office she did not seek to resist his attentions or to escape therefrom; or report the matter to the trusty (Jim) or to Shirley. Later, when Mankin unlocked and entered the room or “hole,” where she had been placed, she did not seek to escape, but admitted that, after Mankin entered she closed the door. She didn’t remember whether Mankin then locked it or not. When favors were again solicited, she didn’t get off the bed or seek to leave. No threats of bodily harm or physical violence were even suggested. There was no violence to her person, either actual or threatened. She was not seized, held or even an arm twisted. The only force exerted was the weight of his body in pushing her back on the bed and removing part of her clothes.

Before the second occurrence, she sat on the bed beside Mankin while he removed all of his clothes, although she well knew what he had in mind. She made no effort by acts or violent language to deter him from his plan. Her own testimony concerning Mankin’s earnest and repeated solicitations and arguments fail to evidence an intent on Mankin’s part to use force, threats or violence to accomplish his purpose. Plaintiff’s testimony concerning a free discussion of the matter of sexual relationships with others and his requests show that consent was denied only by the use of the word “No.”

When asked whether Mankin tore her panties in taking them off, her only reply was that, “They were ripped on the side because he took them off.” There is no evidence that Mankin struck plaintiff, cursed her or vocally abused her. She testified to no fright or anticipation of physical violence either before or after the occurrence. She did not scream or shout for help. So far as the record shows plaintiff did not curse or abuse Mankin, or bite him, scratch him or hit him, or take any aggressive action against him, except perhaps to try to hold up her clothes or to prevent the application of the vaseline. It is true that no affirmative consent was given in words. So far as appears from the record, neither party suffered any bruises or scratches or physical injuries of any kind. The evidence also fails to show any emotional outbursts by plaintiff of either temper or tears. When Mankin wanted to kiss her and she said “No,” he did not seek to force a kiss upon her. While she said that after each intercourse Mankin told her not to tell it or she would not get out of the “hole,” there is no suggestion in the record that she believed his statement, or was in anywise deterred or frightened by him. As stated, no prior threats of any kind were shown. While there is evidence in the record that plaintiff told Riley about what had happened and also reported to Markway after Mankin was no longer employed, yet there is much conflict in her testimony. At the time her pregnancy was being investigated, she said they (Markway and the head of the women’s prison) “wanted to know who the father was” and that she did not tell Markway who was to blame for her pregnancy. She said: “I didn’t tell him then because I had told my mother, I didn’t tell him who it was. I had talked to my mother and she told me not to tell anyone anything until she talked to me further.” While appellant emphasizes that she was a prisoner in the jail and it was Mankin’s duty to protect her, we do not find these facts conclusive on the issue of rape under plaintiff’s own evidence. Appellant’s brief fully recognizes that (to make out a submissible case of rape) the evidence must show that plaintiff offered the utmost reluctance and the greatest resistance possible under the facts.

The applicable rule is well stated in Champagne v. Hamey, 189 Mo. 709, 726, 88 S.W. 92, 97, as follows: “To entitle plaintiff to recover in this action it must be shown by some substantial evidence that the defendant, by force and violence and against her will, ravished her. * * * The statements of plaintiff as to this occurrence must be viewed in the light of all the surrounding facts and circumstances. If the physical facts and all the circumstances appearing in evidence, together with the surrounding conditions, absolutely negative and destroy the force of such statements, then, in contemplation of law, such statements do not amount to any substantial evidence of the facts to which they relate. We do not mean by this that the prosecutrix must be corroborated, for such is not the law of this state. (State v. Marcks, 140 Mo. 656, 41 S.W. 973, 43 S.W. 1095.); but we do hold that statements made by a witness that are, not only in conflict with the experience of common life and of the ordinary instincts and promptings of human nature, but negatived as well by the conduct of the witness, and the conditions and circumstances surrounding the occurrence to which they have application, are not sufficient to support the grave and serious charge of rape, and this is true whether the charge is made in either a civil or criminal proceeding.” And see Williams v. Collins, 180 Mo.App. 146, 155, 167 S.W. 1189.

After a careful consideration of the entire record we find the evidence insufficient to make out a case of rape. Plaintiff’s own testimony, considered as a whole, is not substantial or sufficient to show a want of consent, in that it fails to show the utmost resistance possible under the existing facts and circumstances. Champagne v. Hamey, supra (189 Mo. 709, 715, 727, 88 S.W. 92); State v. Hamey, Mo., 65 S.W. 946, 951 (same facts reviewed); Robinson v. Musser, 78 Mo. 153. And see State v. Remley, Mo., 237 S.W. 489 (citing Champagne v. Hamey, supra); State v. Burton, 355 Mo. 467, 196 S.W.2d 621, 623; State v. Burgdorf, 53 Mo. 65, 67.

Appellant further contends that “plaintiff made a submissible case on the theory that she had become pregnant while in defendants’ custody,” even if her pregnancy was due to vohtntary sexual relations with Mankin or someone else.

The only authority cited in appellant’s'brief under this heading is a reference to Section 221.310 RSMo 1949, V.A.M. S. making it “the special duty of the court having criminal jurisdiction, at each term, to inquire and see that all prisoners are humanely treated.” In view of the record in this case the mentioned statute has no application. While it is no doubt true that a 17-year old female prisoner should not be permitted to have sexual intercourse with anyone during the period of her imprisonment, the fact that such relationship may occur with the voluntary consent of the prisoner may not be made the basis for a recovery of actual or punitive damages from the guilty party or from the sheriff and his bondsmen. Reprehensible as such conduct would be if participated in by an officer in charge, we find no authority authorizing such a recovery of damages under the facts shown by this record. No such authorities have been called to our attention. We must and do hold that the facts shown by this record are insufficient to support a recovery of either actual or punitive damages. The Court did not err in dismissing the plaintiff’s petition.

The judgment is affirmed.

All concur.