Imágenes de páginas
PDF
EPUB

Attempted Rape:

Evidence.

State v. Adams.

it our duty to closely scrutinize the evidence to see that no injustice shall be done the defendant. [State v. Goodale, 210 Mo.

1. c. 283.]

It was also held in that case that a conviction for rape can be sustained on the uncorroborated evidence of the outraged female. In this case we find that the evidence of the young girl is, in many respects, corroborated by that of the defendant and his wife and by the child's mother. It is conceded that in the afternoon of a day in May both doors in the room were shut. The defendant and his wife say that they were closed to keep out the pigs. Such an explanation is, to say the least, almost absurd. It is hard to believe that pigs would force themselves into a room where there were three persons and where they were not tempted to enter by the presence of food of some kind. The defendant and his wife contend that he was lying on the bed and that the child had thrown herself on him and was pinching him. That is a concession, to say the least of it, that there was something wrong, and that something, taken with the fact that the doors were closed, constitutes a strong corroboration of Freedie's evidence. In the absence of any impeachment of the prosecutrix or her mother, and in the absence of any motive for other than an honest prosecution of the defendant, we are fully satisfied with the sufficiency of the evidence to sustain a conviction.

The instruction asked by the defendant and refused by the court was fully covered by instruction numbered two given by the court, so that such refusal was not error.

Instructions.

The judgment is affirmed. Williams, C., concurs.

PER CURIAM.-The foregoing opinion of Roy, C., is adopted as the opinion of the court. All the judges concur.

State v. Horton.

THE STATE v. I. M. HORTON, Appellant.

Division Two, February 19, 1913.

1. APPEAL: Review of Instructions. Unless appellant's motion for a new trial complains of the court's instruction on the subject of alibi, the alleged error in giving it will not be reviewed on appeal.

2. PHYSICAL EXAMINATION OF DEFENDANT: Consent: SelfIncrimination: No Objection. The testimony of physicians who testified that, after defendant's arrest, charged with statutory rape upon an eleven-year-old girl, they made a physical examination of defendant's person at the request of the police captain, and found him afflicted with a venereal disease, his only "consent" consisting of a failure to object to the physical examination, is incompetent, if properly objected to, as an invasion of his constitutional right not to be compelled to testify against himself; but where his only objection to the testimony was that the physical examination took place after the preliminary examination before the committing magistrate, the admission of the incompetent testimony did not constitute reversible error, since the objection was not sufficient to call the trial court's attention to its incompetency.

3. EVIDENCE: Threats of Mother of Prose cutrix: Competent. The defendant charged with statutory rape is entitled to show that the mother of prosecutrix, called as a witness by the State, had made threats against him before the alleged assault; and where, on cross-examination, she denies having made any such threats and denies having engaged in a certain quarrel with him, he is entitled to call witnesses to show she did make such threats and did engage in said quarrel. Having laid the proper foundation, he is entitled to present such testimony to show the bias, malice, ill-will and prejudice of the witness, whoever is the prosecutrix; but such testimony is especially pertinent and fair where the prosecutrix is an eleven-year-old girl, and is in the control and custody of a witness who is the real prosecutor or prosecutrix, in a case where the charge is sometimes the result of ulterior motives.

4. CARNAL KNOWLEDGE, ETC.: Necessity for Fairness and Caution. The frequency of verdicts of guilty in cases of rape, carnal knowledge, incest and seduction upon evidence not strong enough to secure convictions in other criminal prosecu247 Mo.-42

5.

State v. Horton.

tions, demonstrates that the mere charge of an assault upon a woman or child sometimes injects such prejudice into the minds of the jury as to compel defendant to prove his innocence beyond a reasonable doubt, and makes it necessary that officers should conduct such prosecutions with scrupulous fairness.

:

: Other Disconnected Acts. The offer of evidence of an assault upon another little girl in the school of the defendant, who is charged with carnally knowing an eleven-year-old pupil wholly disconnected from said charge, was not only improper, but, in this case, the mere offer was prejudicial.

Appeal from Jackson Criminal Court.-Hon. Ralph S. Latshaw, Judge.

REVERSED AND REMANDED.

Glen L. Bruner for appellant.

(1) The verdict of the jury was against the evidence and should be set aside. Under the evidence the verdict indicated that the jury were actuated by bias and prejudice against defendant. (2) The court erred in not sustaining defendant's objections to the testimony of Dr. Stone, who examined the defendant and testified as to his findings. State v. Newcomb, 220 Mo. 65; Constitution, art. 2, sec. 23. (3) The verdict is against the evidence and against the weight of the evidence. Johnson v. State, 17 Ohio, 593; Hornbeck v. State, 35 Oh. St. 277; Higgins v. People, 58 N. Y. 377; State v. Shettleworth, 18 Minn. 208; State v. Knoff, 45 N. II. 148; State v. DeWolf, 8 Conn. 93; 4 Blackstone, 213; Topalanck v. State, 40 Tex. 160; State v. Patrick, 107 Mo. 147.

Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.

(1) The trial court's rulings on evidence are in accordance with prior rulings of this court. There is only one exception that is worthy of note, in which appellant's counsel undertake to show that the Cason

State v. Horton.

family had made threats against appellant. The court ruled that such threats were not admissible, for the reason that said threats were not brought home to Callie Cason. We think this ruling proper. While it may be shown in defense the prosecutrix's ill-feeling toward appellant, yet, in this case no such proof was offered. (2) The sufficiency of the evidence was for the jury. When there is substantial evidence to support the verdict, this court will not convert itself into a trier of the facts. State v. McCullough, 171 Mo. 574; State v. McGuire, 193 Mo. 227; State v. Williams, 199 Mo. 137; State v. Matthews, 202 Mo. 147. (3) Appellant cannot complain of the physical examination made of him by the physician. There is ample evidence in the record showing that he consented to such examination. Attorneys for appellant undertake to make the point that he was not then represented by counsel, but there is nothing in the record showing that he requested counsel, except one time at the jail, and the witness who had charge of him stated that the only reason they did not then stop to let appellant's counsel confer with him was because of the mob, and the fact that appellant was in danger of being taken from them and subjected to violent treatment.

BROWN, P. J.-Tried in the criminal court of Jackson county, defendant was convicted of rape, and appeals from a judgment of that court sentencRape. ing him to a term of twenty-five years in the State penitentiary.

Defendant (colored) was a school teacher in Kansas City, Missouri, and was charged with ravishing Callie Cason, one of his pupils, of the age of eleven years.

The testimony of the prosecutrix is to the effect that when school adjourned for the noon hour on May

The Facts.

State v. Horton.

25, 1911, the defendant requested her to remain and pour some water on his hands; that, after the other pupils had left the building, defendant locked the doors, placed her on a table and ravished her. She says that while defendant was making the assault she threatened to tell her father and mother; whereupon defendant promised to give her a nickel if she did not tell on him. She testified quite positively that defendant confined her in the school room all afternoon. Upon further examination she stated that while the assault was being committed four or five little girl-pupils returned and "peeped in" through the windows of the school house; that defendant saw these pupils, discontinued the assault and let the little girls into the school room; whereupon the defendant and all the pupils gathered at the home of Mrs. Dulin, a neighbor, to play upon a piano and practice singing for the closing exercises of school.

The crime, if committed by defendant, was committed on Thursday, May 25, 1911. Prosecutrix attended school on the following day (Friday), but did not inform anyone of the assault until about ten days later. On Thursday of the following week prosecutrix went to Kansas City, Kansas, to visit Mrs. Bell, a married sister, where she remained until the following Saturday evening. Prosecutrix further testified that she did not inform her sister of the assault while on this visit, but the sister (Mrs. Bell) testified that the prosecutrix did inform her of the crime while at her home. That she (Mrs. Bell) went home with prosecutrix Saturday evening intending to inform her mother of what had occurred. She says that she forgot to tell her mother until about eleven o'clock the next day (Sunday).

The mother of prosecutrix testifies that after being informed of the crime she called upon prosecutrix for an explanation; that prosecutrix "began to cry, and I asked her what she was crying for. She said:

« AnteriorContinuar »