100 Mo. 382 | Mo. | 1889
This defendant was convicted of rape, committed upon the person of Mrs. Gutting. Objections were made to several jurors for cause; and, as the ruling of the trial court upon the qualification of Mr. Worsey presents the strongest case in favor of defendant’s objections, the examination of the other jurors need not be set out.
This juror upon his examination by the state, testified : “ I do not know the defendant, nor do I know Mr. or Mrs. Gutting. I remember of reading of the case in the newspaper shortly after the affair occurred. I thought it was a pretty hard case. I can’t say, but I have an opinion about the case. It would not prejudice me in the trial.”
By counsel .for defendant: Q. “You did form some opinion at the time of the occurrence, did you, when you read it in the newspaper? ”
A. “ Well, I thought it was a kind of a hard case, of course.”
Q. “And you formed an opinion that it was a hard case?”
A. “At that time, yes, sir.”
Q. “ Well, you have nothing to change the opinion, have you?”
Q. “You have got that opinion yet ? ”
A. “ Well, I have got that opinion yet, as I read it in the paper; if evidence is proved to the, contrary, I can give a just verdict.”
Q. “In other words, if you went on the jury you would have to have evidence to change that opinion you have formed?”
A. “Yes, sir.”
Q. “If you were to take your seat now, you would have a bias or prejudice in your mind ? ”
A. “Yes, sir.”
Q. “A bias and prejudice that would require evidence to remove? ”
A. “Yes, sir.”
Q. “In other words the defendant would have to-prove that he was innocent ? ”
A. “Yes, sir.”
He states on re-examination by the state, what he-means is, that if the newspaper report is shown to be true, then he would retain the opinion he had formed; but, if the evidence showed another state of facts, he would arrive at a different conclusion.
By the court: Q. “Have you any prejudice in the case that would prevent you from giving him a fair trial?”
A. “ Nothing to prevent me from giving him a fair trial.”
Q. “Then would, or would you not, pay any attention to what you read in the paper ? ” •
A. “No, sir. If I am employed as a juror it would take my attention from the paper. If I am sitting as a juror, I judge by what is put forth.”
Q. “In the court room ?”
A. “Yes, sir.”
In answer to other questions he says he could and would be guided by the evidence advanced on the trial.
The statute provides that a juror may be sworn, though, he has formed an opinion, if it be founded on rumor and newspaper reports and be such as not to prejudice or bias his mind. The rule repeatedly asserted under the statute is in substance this: A juror who states on his examination that he has formed and expressed an opinion as to the guilt or innocence of the accused, and that opinion has been formed from rumor or newspaper reports, and that it would require evidence to remove the opinion, is not an incompetent juror; provided it shall appear to the satisfaction of the court that such opinion will readily yield to the evidence in the case, and that the juror will determine the issues upon the evidence adduced in- court free from' bias. State v. Walton, 74 Mo. 271, and cases cited; State v. Bryant, 93 Mo. 302. This rule, so often asserted by this court, is in accord with that where it is said : The true doctrine is that, if a juror’s conceptions are not fixed and settled nor warped ’ by prejudice, but only such as would naturally spring from public rumor, or newspaper reports; and his mind is open to the impressions it may receive according to the law and testimony, he is not incompetent. 2 Graham & Wat. on New Trials, 378.
Now, the opinion of the juror in this case was based upon what he had read in the paper over a year before the trial, since which time he had not thought of the matter. There is but one question left, and that is, whether it appears the opinion thus formed is such as not to bias his mind in the trial of the case. Does it appear that the opinion is one which will readily yield to the evidence ? This question, it may be observed, in the first place, is to be tried by the trial court as a question of fact, and the finding of the trial court ought not to be disturbed unless it is clearly against the evidence. All doubts should be resolved in favor of the finding of
2. 'Mrs. Hutting resided on an out-street in the city of St. Louis with her husband and two children. She had been subject to aberrations of the mind for four or five years, and for two years prior to the occasion in question she had, according to the testimony of her husband, spells two or three times a week, when she imagined the persons who came to the house came there to steal or carry off their property. In other respects she appeared to be well, and at all times attended to her household duties, taking care of the
Maher drove about a half-mile and stopped at a saloon at what is called the Half-way House. He says he went into the saloon leaving defendant and Mrs. Gutting under the tarpaulin, and that defendant came into the saloon in ten or fifteen minutes. They remain ed at the saloon about two hours drinking with five or six other peddlers. Other evidence is that these peddlers, at the invitation of defendant, went to the wagon, one after another, and returned with straw on their clothes. One witness says the woman was lying down in the wagon motionless and apparently in a state of unconsciousness. This shameful conduct over, Maher and defendant drove west
Her husband says she came home about half past twelve in a bewildered state of mind; she gave a broken account of what had happened, and did not know that any great wrong had been done.' She was still without covering on her head and feet, though the weather was cold. ^áHÉLch arm there were from six to ten black marks, Hmng the appearance of finger marks.
Defendant, testifying in his own behalf, says he drank beer with Mrs. Gutting on a former occasion when he stopped at the house; that on the evening in question she wanted beer and got into the wagon of her own accord to go to the Mount Pleasant House for that purpose, but they stopped at the Half-way House. He says she was a good woman, and he had no intercourse with her, with or without force, and that he made no improper proposals to her.
The objection made that it does not appear that force was used by the defendant, or that there was resistance on the part of the wonian, cannot be sustained. The state must, of course, show force used on the part of the defendant, and that the woman did not consent. These questions of fact are interwoven, and the one is somewhat dependent upon the other. Whether the woman did or did not consent to the act is, in most cases, to be inferred from the surrounding circumstances; and, hence, resistance or want of resistance becomes an important element in the evidence. So, the resistance to be expected depends much upon the physical and mental strength of the woman. The distinctions
But conceding all this, it is next urged that the crime was not committed when the force was used, and that the subsequent conduct of the woman furnishes conclusive evidence of acquiescence on her part. It is doubtless true, as a proposition of law, that if consent is given after the assault and before the act is completed by penetration, it will not be rape. But a consent induced by fear of personal violence is no consent. 2 Bishop Crim. Law [7 Ed.] sec. 1125. Submission from fear, or because the mind of the woman is overcome by fright, is no consent. McQuirk v. State, 5 Am. St. Rep. 381. Though the witness' Maher says Mrs. Glutting, during the drive to the saloon, made no outcry or resistance that he saw or heard, yet he says she and the
Nor do we agree to the proposition advanced by counsel for the defendant that there is no evidence of rape, except upon the theory that Mrs. Glutting was so insane as to be incapable of giving her consent. She was, beyond all doubt, a woman of a weak and a disordered mind, but she had the mental capacity to attend to her household duties at all times, cared for her small children, and visited acquaintances with her husband. The mere fact that a woman is weak-minded does not disable her from consenting to the act. McQuirk v. State, supra. A woman with less intellect than is required to make a contract may so consent to a carnal connection that it will not be rape in the man. 2 Bishop’s Crim. Law [6 Ed:] sec. 1121. So long as the woman is capable of consenting, and does consent, the act is not rape, and this is true though the man may know that she is of weak intellect. All the evidence tends to show that Mrs. Glutting did have, when first assaulted, the strength of mind to consent or dissent; and there was no error in placing the case before the jury on that theory. Had this not been done it is quite clear the defendant would be demanding a reversal on that account.
At the close of the evidence the court inquired if there were any instructions that either side specially craved, and counsel on both sides made a negative reply. Thereupon the court, it is conceded, gave such instructions as are usually given in cases of rape. But it is now
Our statute provides that “every person who shall be convicted of rape * * * by forcibly ravishing any wo man of the age of twelve years or upwards shall be punished,” etc. R. S. 1879, sec. 1253. Rape is generally defined to be the carnal knowledge of a woman by force and against her will. This and like definitions are compiled from the English statutes, and some text writers hold, that it is erroneous in that the words “without her consent” shall be used instead of “against her will.” 2 Bishop’s Crim. Law [7 Ed.] secs. 1114, 1115. Wharton says: “ The term ‘against her will’ was used in the old statutes convertibly with ‘without her consent;’ and it may now be received as settled law that rape is proved when carnal intercourse is effected with a woman without her consent, although no positive resistance of the will can be shown.” 1 Whart. Crim. Law [9 Ed.] sec. 556. Carnal knowledge of a woman by force and without her consent is rape. Commonwealth v. Burke, 105 Mass. 377; Reg. v. Fletcher, 8 Cox C. C. 131; Reg. v. Ryan, 2 Cox C. C. 115; Reg. v. Jones, 4 L. T. N. S. 154. From this, says Wharton, it follows that carnal knowledge with a woman incapable from mental disorder (whether that disease be idiocy or mania) of giving consent is rape. 1 Whart. Crim. Law [9 Ed.] sec. 560.
To constitute rapé the act must be intended to be done with force and without the woman’s consent, and if done with these intentional elements, it can make no difference that the woman was insane and that the accused did not know she was incapable of giving her consent. Unless this is so, an insane woman or an idiot
But in this case there is no evidence tending to show that the accused had intercourse with Mrs. Gutting upon the mistaken belief that he had her consent. His evidence is a denial that he had intercourse with her at all, or made any proposal to her to that end. The state’s evidence, if worthy of belief, shows that this woman was forcibly and intentionally ravished. No such a defense as that now suggested was thought of on trial, or the defendant’s able counsel would have suggested it to the court. There is no evidence upon which to base it. Indeed, under the authorities before cited it might well be said that there is no evidence tending to show that the woman was incapable of giving her consent when first assaulted.
The judgment is therefore affirmed.
BY THE
SUPREME COURT
' OF THE
STATE OF MISSOURI
AT THE
APRIL TERM, 1890.