191 Mo. 665 | Mo. | 1905
At the December term, 1903, of the circuit court of Monroe county, Missouri, the prosecuting attorney of said county filed the following amended information:
“State of Missouri, County of Monroe, ss.
“State of Missouri, Plaintiff,
vs.
“George Dilts, Defendant.
“In the Circuit Court of Monroe County, Missouri, December term, 1903.
“And now at this day comes James P. Boyd, prosecuting attorney of and within the county of Monroe and State of Missouri, and files herein his amended information in this cause, leave of court having been first had and obtained for that purpose, and under his oath of office informs the court that George Dilts, on the tenth day of August, in the year of our Lord nineteen hundred and three, at and in the said county of Monroe and State of Missouri, in and upon the body of one, Minnie F. Whittaker, a female, unlawfully, violently, and feloniously, did make an assault, and her, the said Minnie F. Whittaker, then and there, unlawfully, forcibly and against her will feloniously did ravish, forcibly rape and carnally know, against the peace and dignity of the State.
“Jambs P. Boyd,
Prosecuting Attorney.
“James P. Boyd, prosecuting attorney of and within and for the county of Monroe and State of Missouri, as aforesaid, being duly sworn, on his oath states that the allegations, matters and facts in the foregoing information are true to the best of his knowledge, information and belief. Jambs P. Boyd.
“James H. Hill,
Clerk.of the circuit court of
Monroe county, Missouri.”
At the April term, 1904, of said court, the defendant was put upon his trial and convicted of rape and Ms punishment assessed at five years’ imprisonment in the penitentiary. After unsuccessful motions for a new trial and in arrest of judgment, the defendant appealed to this court.
The testimony on behalf of the State tended to prove that the prosecutrix, Miss Whittaker, was twenty-one years of age and was living with and in the employ of Mr. and Mrs. Zeno Reed, near Victor, in Monroe county, Missouri, in the capacity of a domestic, assisting Mrs. Reed in the housework. Mr. Reed’s home was about five miles from that of the parents of the prosecutrix. The prosecutrix and the defendant, George Dilts, had known each other for about three years and for some time prior to the alleged offense he had been paying her marked attentions. The father had objected to these attentions and forbade them. On the afternoon of the day of the alleged rape the prosecutrix accompanied the defendant in a one-horse buggy from the home of her employer, Mr. Reed, to Mr. Geery’s, about six miles distant. It appears that they left Mr. Reed’s house about seven o’clock and spent the evening at Mr. Geery’s and returned to Reed’s that night. It was on their return trip that night that the crime is charged to have been committed. The testimony tends to show that they left Geery’s about ten o’clock. According' to the evidence of the prosecutrix, the defendant insisted upon her taking a drink of whiskey during the drive home; but she refused to do so, and he tried to force her to do so, and in so doing spilled some of the whiskey on her clothing. The evidence tended to show that the prosecutrix at this same
On the part of the defendant, Mr. John Hurd testified that he passed defendant and the prosecutrix that night near the farm of Mr. Pugh — he was going east while they were headed west, and he rode to- one side to let them pass. He described their position in the buggy when he first saw them as “Laying down, as near as two people could be in a buggy, the buggy top was back, laid down; they were lying back in the buggy;” that the defendant had his left arm around prosecutrix’s neck, but he did not notice what he was doing with his other hand; that as they passed him the defendant raised up and sat upon the seat but she lay still until they had passed him some fifteen feet, when she raised up and sat by the defendant and appeared to
It appears from the record that the first complaint filed by the prosecuting attorney in this cause charged the defendant with assault with intent to rape. This information was filed upon the information furnished prosecuting attorney by the father of the prosecutrix. There was no evidence impeaching the good character of the prosecutrix.
When the case was called for trial, the prosecuting attorney asked leave to recall a subpoena he had caused to be issued for three parties as witnesses for the State who were on a special jury panel for the trial of this cause. The court permitted him to recall the subpoena against the objection and exception of the defendant and to examine them as to their qualifications as jurors. But as to this last alleged error, it is not assigned as a ground in the motion for new trial, and, hence, it will not be necessary to notice it further. The instructions will be noted in the course of the opinion. Numerous errors are assigned for the reversal of the judgment.
I. The first ground of error relates to the action of the court in permitting the prosecuting attorney to recall the subpoena for the three jurors on the regular panel; but, as already said, this alleged error is not before us for review at this time, for the reason that it was not in the motion for a new trial. It was a matter
II. Error is also assigned to the action of the court in permitting Mrs. Reed to testify in rebuttal to matters she had already testified to in chief. The testimony related to certain conversations which it was claimed she had with certain of the defendant’s witnesses. While some reference was made to the said conversations in her evidence in chief, the State was entitled to have her testify in rebuttal that she made no such statements to the defendant’s witnesses as testified to by them. Moreover, the order of testimony is a matter that must necessarily be left in a great degree to the discretion of the trial court, and an examination of this evidence discloses no abuse of that discretion. [State v. Murphy, 118 Mo. l. c. 15; State v. Buchler, 103 Mo. 203.]
III. The court refused instruction No. 5 asked by
the defendant and modified instructions Nos. 3 and 4 as prayed by the defendant. No exception was taken to the action of the court in thus modifying and refusing the instructions as asked, and, hence, the action of the court is not before us for review as to those instructions. While the instructions given by the State of its own motion were assigned as error in the motion for new trial, only two of said instructions are challenged in the brief of the defendant and in the oral argument of his counsel in this court, to-wit, instruction No. 4 and instruction No. 5½. Instruction No. 4 is in these words: “The court instructs the jury that the defendant is a competent witness in his own behalf, and his
IV. Finally, it is insisted that the verdict of the jury is so manifestly the result .of prejudice and bias and so absolutely without credible'evidence upon which to base it, that this court should reverse the judgment. It is fundamental that this court will not enter upon an examination of the mere weight of evidence and usurp the province of the jury in that regard; but, if there is no evidence, or if, the evidence all taken together, the verdict is clearly the result of prejudice, passion or partiality, this court will interfere and set aside the verdict. [State v. Primm, 98 Mo. l. c. 373, 374, and cases cited.] In State v. Marcks, 140 Mo. 656, the necessity of corroboration of the testimony of a prosecutrix in a case of rape was considered by this Court in Banc, and the conclusion was reached that at common law there was no absolute rule of law requiring corroboration in prosecutions of rape as is the case in treason or perjury or seduction under our statutes. And the rule in this State is well settled that there is no rule of law which forbids a jury to convict one charged with this crime on the uncorroborated testimony of the prosecutrix if the jury are satisfied beyond a reasonable doubt of the truth of her testimony. Lord Hale, in his Hale’s P. C., 633, stated the rule to be, "The party ravished may give evidence upon oath, and is in law a competent witness; but the credibility of her testimony, and how far she is to be believed, must be left to the jury, and is more or less credible according to the circumstances of fact that concur in that testimony.” In the record before us, the fact that the defendant on the night of the alleged rape was alone with her at least