*1 Supreme op Missouri, [Ap> You. 317. U Term, general applicable were decided on rules where a cases creditor single upon agrees payment to release a debtor of a sum less than statute, corresponding present liable for. he-is our Section .to application has and no under such circumstances those cases authority "Judge in the case at bar. Sherwood, constitute no Hunt, V. supra, Baker said: apply do of this and
“Nor the decisions other courts when the question simply payment single part is whether the debtor of a only opera- of his debt will release the statute residue. The becomes prescribes when the conditions which it and tive exist meet with ’’ compliance. With this statement we are in accord. fully agree Springfield with Appeals
We Court of in its dis- position of judgment the case at bar. of trial is ac- court cordingly reversed and All concur. the cause remanded.
The State v. Victor Catron, Appellant. S. W. 141. Two, July 23,
Division upon 1. DEMURRER TO EVIDENCE. If defendant his fails stand goes case, demurrer to the evidence offered at the close State’s offering own, court, considering forward ficiency suf- evidence of his support guilty, of the evidence must the verdict of consider the evidence. Rape: guilty having' 2.-: A of returned Force. verdict been years age, charged raping eighteen of trial of a woman having her and had sexual inter- and defendant course with her admitted that he abducted only automobile, question decision, in a con- in his for made a ease of whether the evidence submissiible to sideration jury, beyond is a reasonable doubt establishes the carnal whether ths. by force, against knowledge the will and without the consent woman. -: Constructive Force. To establish -: Resistance: Fear: must force charge show showing either, and resistance did not the woman and important element the evi- an becomes on her of resistance want n dence. upon dependent cir- is amount resistance But attended, upon mental the woman’s act is carnal which the cumstances resistance, showing facts strength and make physical ap- is not of utmost resistance The doctrine resistance. uselessness injurv. personal Neither actual put in fear woman plicable where the part, physical the woman’s resistance nor defendant’s physical through yields fear carnal act necessary, if the part, injury, bodily such is con- harm or fear by prior threats caused structive force. Weight Age: Respective Fear: Abduction -: 4._: years eighteen that the woman The fact Consent. Force Threats: was nineteen pounds, that the defendant weighed 155 age and Catbojst. n Sítate v. 1927J age weighed pounds, importance is of no where the woman was taken from nighttime, escort in point pistol, at the larger defendant and co-indictee, his the same coercion driven away in an place automobile isolated and there inter- both had sexual yielding only pointed gun to them after course, her with the threat get did, that she would never home unless she *2 only after one of by them had torn her bloomers while the stood with other gun hand, and she crying sobbing. was all the time and Such show facts rape by force, against her will and without consent. 5. --J -: Persuasion: Notwithstanding Consent: Fear. the wo- man “persuaded testified. that give she was in” and have sexual inter- men, course with the two evidence that the two met her and her escort a night, late pistols hour of the with compelled in hand her escort to leave death, under a threat of automobile, forced her into their drove an iso- place, lated never with a threatened her give that is she did not them she would get home, pointed pistol her, a by and while one of stood gun in hand the other tore her bloomers and had intercourse with and then the other while position she remained in the on the back seat also crying intercourse with sobbing and time the and weak stupefaction, fear with “persuaded” shows the word was not used by consent, her in the yielded only sense of but that she to them out of fear great bodily of harm. Imprudence. 6. RAPE: Unchaste Woman: Forcible ravishment an un- of rape. chastity may chaste question bearing is ofWant a the consent, may of mitigation. not be shown as a defense The fact prosecutrix young woman, the separated was a married from her suing divorce, returning young husband and man as escort at for a was a from dance with a two-thirty, night, imprudence, o’clock at of be evidence but it does not show that she was unchaste or a loose woman. Outcry. -:7. Manner of Performance: No inference of a conclusive prosecutrix great nature can failure the a be drawn from the of to make by bodily outcry harm great act induced of after the of sexual intercourse threats hand, gun in at the time of act a nor from the fact that automobile, edge sitting seat of the which was on the front the back of floor, body reclining upper portion towards a foot from about grasping seat, of her hands seat back shoulder, away. only pushing against Such relate defendant’s him facts jury probative question de- and their force for of Besides, outcry great where the men a would have been futile two termine. automobile, night guns her into an a hour of the forced in hand at late accomplished lonely and there place a road to an isolated drove purpose automobile assault bodily harm, and when let her out threats of immediately reported the its license number she observed tending constable, to show a non-con- circumstance which was sent. Jury: Weight Prejudice There of Evidence. of -: Passion and 8. being guilt, preponderance its of defendant’s evidence substantial years’ imprisonment light punishment five jury; of rape by of means abduction guilty forcible of found for a threats automatically assignment disposes of great-bodily harm bias, passion prejudice the result the verdict jury. 8549, Law, J., Criminal C. Section Juris^Cyc. References: Corpus Cyc., 1420, Rape, p. 34; 256, 3593, n. n. 67. 25; n. p. 205, n. Section 43; 72; 11; 1490, p. 1478, p. 1485, 89, 95; p. n. n. n. 1427, 53; p. p. p. n. n. n. 11. op Supreme [April Vol. Missouri, Court Wnr- A. County. G. Louis Appeal St. from Circuit —Hon. Judge. deman, Affirmed. appellant. Heege Hoester, Jr.
George F. J. G. instruction (1) overruling' defendant’s The court erred State’s close evidence at the nature of a demurrer case, First, must be: rape there (a) To establish the crime fe- is, penetration intercourse, an assault and sexual must be second, penetration organ; organs male the male this it must be and, third, female; the will of and the the female any upon the without whatever consent greatest resistance and the reluctance be manifested utmost must Miller, 191 offered male. female to acts (b) offered at the no substantial There was rape, convicting defendant of trial which warranted *3 489; 237 S. AV. Remley, charged v. -in the information. State 726; 189 65; Harney, Mo. Champagne 53 Mo. v. Burgdorf, State v. 284; 234 State Tevis, v. Goodale, 290; State 210 Mo. State Mo. v. 437; 259 Mo. State 356; Paris, 246 v. v. Donnington, v. State Mo. v, 199; 627; 284 Mo. State v. McChesney, Hollis, 185 AV. S. State 974; Anderson, 657; Eslick, 216 AV. Burkett 284 Mo. State v. S. v. (2) overruling in Gerth, 253 S. AV. The court erred defend- 199. ant’s instruction in nature to the evidence the the demurrer (3) close cited The verdict was of the whole case. Cases above. bias, prejudice part the passion jurors, -result of on the of the (4) contrary weight court the of the evidence. The erred in refusing grant improp- on a new trial to the defendant account of argument er attorney prosecuting misconduct on the in the argument arguing jury. the case to the In this case in the to the jury prosecuting attorney men stated: “These murder objection, hearts.” This statement ivas made over defendant’s court, ruling Avhichwas which overruled duly his counsel, excepted. 647; 174 Mo. King, State v. State v. 130 316. Upton, App. Mo. Gentry,
North T.
Attorney-General,
Special
J. D. Purteet,
As-
l’espondent.
Attorney-General,
sistant
for
(1)
properly
The trial court
overruled defendant’s demurrers
interposed
the evidence
at the close of and at
State’s case
close
the case.
substantially
evidence
The evidence is
to show
to-wit,
sufficient
all the
of the crime,
elements
carnal knowl-
edge,
(a)
force and
absence
Constructive force meets
1927]
897
S'TATJG V. CATRON.
Ed.)
(3
Crim. Law
see.
Kelley's
requirements
statute.
vio-
personal
fear of
or induced
(b)
obtained
p.
Consent
2
(9
557;
Ed.)
1
Law
sec.
Crim.
is not consent. Wharton
lence
Cunningham,
v.
Ed.)
1125; State
Bishop
(7
sec.
Crim. Law
Barbour, 234
296;
v.
392;
State
Dusenberry,
v.
Mo.
State
Mo.
(e)
substantial evidence of
the record contains
Mo.
Where
will not
information,
charged in
this court
guilt
the crime as
Ripey,
Mo.
finding
jury.
State v.
disturb
affirmative
DAVIS, 10, 1926, on to a on C. Tried June convicted raping Pleimling April was Clara from penitentiary, and sentenced in the State to a term of five appeal duly which taken. warrants the follow of the State adduced finding. city Louis, a
ing Pleimling, of St. employed Clara woman, young' eighteen years age, separated then married pending, was later husband, which an action divorce granted, Krueger, young single to a dance man, escorted one Fenton, conveyance County. St. used was an Over Louis coupe. couples land accompanied Other them machines or met there, lieturning home, reaching Seibert Mor- Avenue ganford couples stopped Road in County, Louis a few minutes St. couples on, for word of leaving farewell. The other then moved Krueger Pleimling departure On chatting. Miss couples, Krueger cigarette. lit lapse and smoked After a of ten couple to fifteen minutes, coupe while talking, were seated jointly defendant and James II. Chance, informed *4 defendant, but as granted, up to whom a was severance drove ¡behind coach, stopping Krueger’s coupe. Star immediately Star coach doors, had two front, being' individual seats in it tip to-raise and one of permit the seats forward to access stopping to the real' seat. After ascertaining the occu pants of coupe woman, the were man by prearrangement and a Krueger point Chance ordered coupe from the at the pistol, alight and, taking defendant bade the woman her arm, the or pushed dered her towards and into the back seat coach. Krueger protested, protect then attempting to the girl, but was met threat, going with the D— you, “Get G — I or will your blow head off,’’ upon Krueger which drove on. Chance then took the wheel occupied and defendant rear girl. seat to the next Chance drove Sup. 317 Mo. —57. [April op Supreme Missouri, Yol. After drive. to decided along until defendant
the car Seibert Aveniie in St. Avenue, on driving the coach Seibert on, stopped defendant Chance, girl, County. They Louis to humor attempted “You saying, them, give in to who was that she beside demanded asked defendant get At this time you will never home if do not.” something to handed “gat,” Chance and Chance During the occurrence identify gun. to as a which unable she very weak. Chance crying she Clara was and she stated cry, but trying to to humor her told it was no use her they stopping After give taken home. in to she would be gun remember whether pointed could not once, her but she and had sexual inter her bloomers not it was often. tore Chance car standing near in the meantime course defendant purpose, defendant gun. accomplished his with a After Chance same her boarded the coach and intercourse with had sexual Grove, They four or five blocks manner. then her to Bisch’s drove put away. shows home, her drove evidence out, two-thirty culprits Krueger about first and Clara accosted her at roadside, and that Bisch’s Grove delivered m., a. five-thirty Krueger reported In kid interim, about a. m. alighting napping Knight, Clara’s from de Constable immediately Grove, fendant’s car at Bisch’s hied to the home Knight, reporting rape Constable assault and on her to him. Krueger waiting She found for her there. Defendant was arrested six-thirty a. morning m. the same at his home. Inasmuch on both State and de- Krueger fendant shows neither Clara and on the one hand nor other Chance on the had ever known or heard of eacli previously, satisfy regard it the curious with to the prompt- preliminary ness the arrest state that the examination shows placed that Clara unobserved herself alighting position in a coach, read number of the license on which state she communi- cated to the constable.
On cross-examination Clara stated in substance that no houses were place observed at the night of-assault. The was dark damp, resulting inability identify in her defendant. At the time of the sitting she was edge front of the seat with upper portion body reclining towards the back of seat, whicli was about foot from the floor. One of her hands was grasping the seat, the other was his shoulder, pushing him away. The following questions were asked and answers returned.
“Q. big Now after this man had intercourse with you you, say persuaded you give he him ? A. Yes, sir.
“Q. persuasion you give Under his did him? A. Yes, sir.” *5 V. ÜATBOK. SITATE 1927] as prosecutrix State, Cháñese, testifying corroborated kidnap- to pistol, as with the first in the instance to assault previous acquaintance as no prosecutrix,
ping her. had with he and defendant both as the sexual intercourse no only made not that she the effect testimony His was to further provided to the intercourse outcry, but that she consented during sobbing However, she he stated home. take her the abduction. abducted and Chance that he
Defendant, stand, admitted State’s related taking her escort as prosecutrix, her from denied Avitnesses, intercourse that he had sexual oc- that it him, asserted yield that prosecutrix he forced any, pertinent, are curred with consent. facts as Such will be related the issues discussed. refusing I. It is the contention that the court erred in to sustain acquit
instructions in the nature of demurrers to the evidence to defendant. As the defense refused to stand on the i~i- Sufficient ease, struction offered at the close of the State's but went Evidence: Force: introducing evidence, forward we must consider all the reviewing question. evidence in The abduction of the Consent. prosecuting witness and defendant’s sexual intercourse with her may from notice, be eliminated further as both were acts admitted defendant. position
Defendant’s not submissible to the cause was predicate is based on the no outcry, no offered made resistance to abductors, the advances of and stated on cross-exam- ination persuaded let intercourse with her. It reported is then deduced the rules law from Miller, 587, v. Mo. 90 W. S. State failed to establish beyond a by force, reasonable doubt sexual intercourse will of any the female and pari. without consent whatever on her phrases “against the will” and “without the consent” of the female, interpreted as equivalent terms, are defined the manifes- utmost, tation of the greatest reluctance and the resistance part. woman’s case, In a similar Barbour, State v. 137 W. S. made,
where a like contention was up court summed the essential relating: elements as first, the necessity showing non-conseni; second, to necessity of px-oving practicable that all resistance was made; third, to the evidential force of a failure to make a out- cry; and, fourth, arising inference per- manner forming the sexual act.
The first and second points, non-consent and resistance, are well treated State Barbour, supra, which adopt we pertinent, as here SupReme op [Apiil Yol. Missouri, *6 second appellant’s first and
reading.: that “It seen at once will be there whenever proven is points correlated, is, are non-consent rav to the proof practicable resistance is the woman made Cunning v. by Blaok, J., This State isher. has been well stated course, show must, of ham, c. as follows: ‘The l. did not con defendant, the woman force on and that is somewhat and the one questions interwoven, sent. of fact are not consent dependent upon woman did or did "Whether the the other. surrounding- from the is, cases, to the inferred act most to be becomes circumstances; of resistance hence, or want and, resistance ex important be So, resistance element in evidence. strength of pected depends upon physical and mental much and the proved, facts to be woman. The distinctions between the kept mind. The should be proof them, evidence adduced in the crime: importance simply show two elements of resistance is non-consent parties, and knowledge by Carnal ” bj Shields, 45 Conn. thereto the other. v. 264.]’ [State by force, merely Tf had shown an act of intercourse record established. The probably utmost would have not been resistance develops circumstances, as record, however, and such further facts personal violence, utmost resistance fear and we have held put applicable doctrine is not Of facts where the female is to a state injury. Barbour, supra.] The amount personal fear of [State depends of resistance to annul consent on the uselessness physical physical actual force nor -resistance resistance. Neither necessary, yields through fear threats of caused deleting great bodily force, injury, or for such is constructive harm necessity physical resistance, reluctance and and of the utmost constituting rape, provided pre- the intercourse the threats are made act. vious to the that, age weight girl,
It because of asserted respectively, age weight eighteen pounds and 155 and the 3ears pounds respectively, and 119 nineteen justify it, argument facts this inconceivable. Where relevant probably force, as it have but inasmuch casts aside fear of harm engendered by injury, the duress abduction threatened it is impertinent developed. facts here girl being were, and her escort accosted defendant and Chance, injury such met threats of subdue her will. The pistol, point more, at the without abduction threatened bodily harm, suggesting to her consciousness the fear of dreadful ' overcoming consequences her will. girl and dire For a to be two-thirty morning] o’clock accosted on road taken from pistol companion away point her at the carried ruffians existed, her in such puts fear, we will never knew presume, as to n !)0l i,9.3~ S'tatií v. CateoN. | . subsequent will, so that the and continue to overcome her overcome rape, absent by. her will constitute acts of intercourse contrary. However, this evident to the facts circumstances duress, for intimidation not the full extent the threats Krueger by Chance, going, G— D— continued when was told “Get you per- I will your Demanding blow head off.” be accomplish again frightened purpose, they mitted to threat, you will get “You never home if do not.” At this time pistol frightened was asked for and handed to defendant. To the girl pointed intimidated it was an additional threat to gun at stopping. her after All of the above facts and circumstances negatived tearing bloomers; consent as and it is incon- did the *7 ceivable that it if would have been to tear her bloomers she had consented. Further corroboration her lack of consent by sobbing crying shown That during occurrence. the whole physically she was weak fear and slrain tended to show mental strength. reluctance and resistance to her utmost Defendant maintains, however, that the facts and circumstances show her consent. This is based on her cross-examination to the persuaded persuasion effect that in gave she under the them; by po- that after the act in Chance she remained same sition she had theretofore assumed while pas- defendant satisfied his sions. agree by We are persuasion unable use of the word pistol abduction, meant consent. The in use of the the men- escort, ace to her give the threat that if she did not to them she get home, pointing pistol her, handing never of it just to defendant by Chance, before the act intercourse crying sobbing, the weakened condition of and the tearing by bloomers, supported the determination to accom- plish purpose not, interpret persuasion whether the word by used the trial her on to mean non-resistance intercourse caused by grounded great bodily well fear of harm and even death. That escort, these men intended to murder her if necessary, it became great bodily to maltreat and do her harm, even to the extent of kill- ing if thwarted in their brutish purpose, we entertain no doubt. same, position That she remained after Chance had ravished was, infer, stupefaction we enormity her due to thing may saj* her. passing responsible done to We that defendant is as 'committed Chance on her as he is for his own act rape. '-of the, suggested
II. evidence, It is girl that the young was a two-thirty married woman and abroad at a. m\ with an escort return- [April Missouri, Vod. OK Sumíemís time At that character. a loose dance, characterized ing from a separated husband, she was from her with a divorce Imprudent pending. may circumspect suit going She not have been Woman. Krueger, to the dance with but no evidence of company and loving gregarious, Youth is delinquency appears. moral only pru- lack about nothing of looseness We see action. kissing goes said that though, it is actions dence. Whatever her and without held right; it has been not favor, Want woman. ravishing unchaste may guilty be her consent may not chastity bearing Cye. mitigation. 1420.] as a or in be shown defense [33 outcry and the points to the absence III. Defendant performing act to manner of from the inferences to lie drawn said responsibility. As we absolve him from criminal Barbour, supra: ``No inference of a conclusive nature can Outcry. they give be drawn from either of these bases. At the most disputable presumption rise to a which the were entitled to they might draw or not to draw as see fit under the circumstances in any rate, deductions, admissible, evidence. . . . At such were compulsory, clearly right relegating not hence the trial court was jury.'' them to the girl isolated on a and Chance The evidence shows defendant recognize them. dark, for her to later lonely deep road in the too great outcry A near houses were observed. No one came and no *8 passed were said, however, that houses AvouldhaArebeen futile. It is way out, record to Riscli’s Grove Avhereshe let anyone up or abroad or could have contains no evidence that accomplished. Moreover, purpose We see intervened. been outcry Immediately point. opportunity no for an effectnre to this constable, alighting, girl hied herself to the home of the story. reporting when and. where she told her The of the matter Avasa opportunity this manner at the earliest circumstance in her favor, tending to show non-consent. assault, force, will questions or utmost reluctance resistance, properly and sexual intercourse were submitted to the jury justified
jury and the were on the case made by the State in beyond finding guilty the evidence shoAveddefendant a reasonable supported by Cunningham, Our are State v. 100 doubt. conclusions 112 376; Dusenberry, 12 W. S. State v. Mo. 20 S. W. 874; 137 461; Barbour, 234 Mo. S. W. Wharton on (9 Ed.) 557; Bishop (7 Ed.) Law sec. Grim. LaAA sec. Crim. bias, is said that the verdict Avasthe result of prejudice IV. It jurors passion contrary weight of the 19*7] PALMER V. StATJSEX REL. THOMPSON. evidence, weight of it is meant If, by
the evidence. jury lack not submissible to the the case was of the disposed facts, have heretofore sufficient we Passion and preponderates If it is matter. meant Prejudice. wholly within question was in favor of light province jury court. sentence and the trial prejudice and automatically disposes bias, five of the passion jurors. on the is complained failing reprimand
V. It that the court erred prosecuting failing discharge attorney jury and in when prosecuting attorney closing argument compared prose- in his citing daughter daughters witness with the mem- Argument might thing bers of the and stated that the same Jury. prosecut- happen daughters happened to their to thé ing only assignment error, witness. This is the relative argument, permitted the motion for a new trial that we are notice, ruling Standifer, under the State v. S. W. 856. The divulge however, record, prosecuting attorney fails to that the men- “daughter” argument. tioned the word his think We the record discloses defendant was afforded fair impartial judgment accordingly trial. The Higbee affirmed. Henwood, GO., dissent. The foregoing PER CURIAM opinion by Davis, C., adopted opinion as the All judges court. concur. v. L. D. Thompson, State Audi- ex
The State
rel. Tabiatha
Palmer
tor.
Court en Legislative 1. PENSIONS FOR BLIND: pro- Matter. The entire matter o£ viding- pensions by deserving- granted Assembly blind was to the General Constitution, declaring amendment Section 47 of Article IV of the *9 prohibiting that said section should not be construed as the General Assem- bly granting authorizing- granting pensions to the deserv- ing blind, provided regulated by be law. Striking County Infirmary. —-: 2. the Act of 1923 maintained Name from Roll: Inmate Under (Sec. 1, 1923, p. 304) person being Laws a blind who is publicly supported automatically deprived at a institution is right pension; exception to receive a and the act makes no in favor