| Mo. Ct. App. | Jun 2, 1913
Defendant appealed from a judgment for $1000 compensatory and $1000 punitive damages recovered by plaintiff in the circuit court in a civil action for an assault with intent to commit rape, alleged to have been committed by defendant on the night of July 4, 1912.
The parties lived on adjoining farms in Mercer county ten or twelve miles southwest of Princeton, the county seat, and each was twenty years of age. Defendant had married an intimate friend of plaintiff but his wife had died about a year before and he was living with his father-in-law. Plaintiff had been living with her father and mother with the exception of brief periods spent in attending a business school in Chillicothe and in working in a hotel in Memphis, Missouri. She had returned home from the latter place about two weeks before the event in controversy, and in company with an elder sister and younger brother, drove
We do not agree with the argument that the failure of plaintiff to call her brother as a witness to contradict defendant would warrant us in rejecting her testimony on this issue as unworthy of belief. We recognize. the rule “that the failure of a party to call a friendly witness having personal knowledge of the facts in issue, raises a presumption or inference that the witness’s testimony would have been detrimental to him.” [22 Am. & Eng. Ency. of Law (2 Ed.), 1261.] But the jury Well might have indulged that inference and still believed that plaintiff told the truth about these preliminary incidents. The questions of the credibility of witnesses and of the weight to be given their testimony are jury questions and whenever we find, as we do here, that their solution of such issues has substantial evidence behind it, we do not interfere.
Plaintiff states that she and defendant started home at half past eleven o ’clock that evening and that as soon as they were well out of town he declared his
Defendant admits that he manifested a purpose to have sexual intercourse but only in response to her amatory advances and that he desisted on being told she was unwell. Plaintiff does not impress us favorably. She speaks too knowingly and freely of obscene matters in obscene terms for a modest maiden and in all likelihood her lack of maidenly decorum led defendant to believe she would fall, an easy and willing prey to his unmastered importunities. Though coarse and unrefined, the evidence shows that she is a girl of good character and reputation and we think defendant’s testimony, as a whole, strongly corroborates her statement that against her will he resorted to physical violence to overcome her opposition to his purpose.
Counsel for defendant invoke the rule frequently applied in cases of this nature that where the evidence of plaintiff is opposed to the conceded physical facts of the occurrence and to the common and natural manifestations of feminine instinct and impulses, it will be disregarded by the courts, but we hold that the evidence of plaintiff will successfully withstand the test of that rule. In a criminal prosecution for rape,, it is said by the Supreme Court “if the defendant testifies and denies the rape, and the prosecution stands alone, unsupported and uncorroborated, there is no-
Plaintiff’s testimony does not stand alone and uncorroborated. As we have said she is aided by admissions of defendant notwithstanding his vigorous denial of lustful violence.. She is also corroborated by the testimony of her mother and sister. Her sister was awake when she returned home and heard defendant’s parting injunction that she refrain from speaking of what had just ■ occurred. When plaintiff entered the house her sister observed her condition, her disheveled appearance and nervous excitement and heard from her lips the story of the assault. She also found that plaintiff’s clothing had been torn in the encounter and that she had bruises on her person and marks of where she had been stuck by defendant with a pin. They waited until next morning before telling their mother of what had taken place but when they told her she, too, observed these various marks and results of physical violence. In the face of such evidence it is useless to contend that plaintiff’s evidence has insufficient probative value to support her pleaded cause of action. Stress is laid on the facts that plaintiff did not attempt to escape from the buggy aud did not raise an outcry sufficient to alarm the farmers living near the road and to attract the attention of a horseman who overtook and passed them. Plaintiff states that repeatedly defendant attempted to force her to leave the buggy but she soon discovered that she was safer there than she would have been in the road. She states that she did scream but that defendant drove furiously past farm houses which were infrequent. It was past midnight and defendant, against her protest, chose a lonely road instead of that usually
The cases in this State where the failure of the woman to cry aloud has been used with telling effect, against her are instances (e. g\, Champagne v. Harney, 189 Mo. 709" court="Mo." date_filed="1905-06-20" href="https://app.midpage.ai/document/champagne-v-hamey-8015467?utm_source=webapp" opinion_id="8015467">189 Mo. 709) where she has submitted in silence to sexual intercourse when she knew that an outcry would bring immediate assistance. In the present case there was no ravishment. Plaintiff was compelled to fight to save her honor and fought successfully. Her torn clothes and wounded body show that it was no sham battle and if it might be said that she could have obtained relief by screaming and crying, it was for the jury to say whether or not the course she followed was consistent with virtuous motives and impulses. [Linville v. Green, 125 Mo. App. 289" court="Mo. Ct. App." date_filed="1907-05-06" href="https://app.midpage.ai/document/linville-v-green-6622452?utm_source=webapp" opinion_id="6622452">125 Mo. App. 289.]
We find no inconsistency in the evidence of plaintiff and hold that it does no violence to physical law and fact. The court did not err in sending the case to the jury.
At the request of plaintiff the court instructed the jury that if they believed “from a preponderance of the evidence that on the night of July 4, 1912, while the plaintiff was riding in a buggy with defendant, he took hold of plaintiff and against her will laid his hands upon her in a lustful way, without her consent and against her will, then your verdict must be for plaintiff. ’ ’
This instruction is not subject to the criticism that it singles out and emphasizes certain isolated evidentiary facts. “The gravamen of the action is the assault and it was not necessary for plaintiff to prove the intent with which the assault was made in order to recover, although intent was alleged in the petition. The intent could only go to the question of damages.” [Lemmons v. Robertson, 164 Mo. App. l. c. 89; Pierce
The intent of defendant to have sexual intercourse with plaintiff was not an essential element of the assault and battery. If against her will and consent he subjected her to violent and lustful physical contact, he was guilty of assault and battery for which she may _ recover damages. The instruction contains the necessary ingredients of her pleaded cause of action and was properly given.
Other rulings of the court on instructions of which complaint is made we find were proper and we see no ground for the contention that the verdict was excessive. The case was fairly tried and the judgment is affirmed.