State v. Skillman

228 Mo. 434 | Mo. | 1910

GANTT, P. J.

This cause was here on a former appeal and was reversed and remanded for want of sufficient information. [State v. Skillman, 209 Mo. 408.]

Thereafter on the 19th of January, 1909', the prosecuting attorney filed a new information in which he charged that the defendant on the — --day of July, 1906, at Bates county, was then and there a person to whose protection one Myrtle McCulloch, a female, then and there under the age of eighteen years, to-wit, of the age of fifteen years, had been and was then and there confided, and her, the said Myrtle, unlawfully and feloniously did defile by then and there having carnal knowledge of her body, while she remained in his care and protection, custody and employment, she the said Myrtle then and there being confided to the care and protection, custody and employment of the said Andy Skillman, against the peace and dignity of the State. Upon this new information, defendant was duly arraigned, tried and again found guilty and his punishment assessed at two years in the State penitentiary. Motion for a new trial and in arrest were duly filed, heard and overruled and the defendant sentenced in accordance1 with the verdict Prom that judgment he prosecutes this appeal.

The testimony on the part of the State tended to prove that in July, 1905, Myrtle McCulloch, a daughter of J. H. McCulloch, was about fifteen years old; that ■under an agreement between ber father and the defendant she went to live in defendant’s family as a member of his family, and for her services defendant was to furnish her with proper food and clothing and treat her as a member of his family and to see that she did not run around the streets of Foster, the town in which he lived, or to be out at night unless accompanied by members of his family. Defendant and his wife and Myrtle constituted the family of defendant. It appears that shortly after Myrtle went to live with defendant he began to take liberties with her in the absence of his wife. This conduct continued until July, 1906, when on one occasion his wife had gone down town — Myrtle was in the dining room alone, writing a letter, when defendant came in and began caressing her and had sexual connection with her on a lounge in the dining room. According to her testimony he had intercourse with her frequently, both before and after that date. She testified she did not consent; that he used more or less force, but she made no outcry, and did not complain to members of the defendant’s family or to her parents when she went home, as she occasionally did and remained for a day or two. In the latter part of July, 1906, she and defendant discovered she was in a family way and she went home, and in March, 1907, she gave birth to a child. She testified that she never had intercourse with any other man and that defendant was the father of her child.

Different witnesses testified to statements and admissions of defendant, tending to show his guilt. The father testified that in July, 1906, defendant had told him Myrtle had received no company or attentions from boys or men and had not been out at night during her stay at his home. On two occasions, soon after she left defendant’s home, defendant inquired of her father if Myrtle had told anything, to which the father replied in the negative as he had not then learned of her condition. Another witness testified that defendant told him he had heard Myrtle was in trouble and was going to charge her condition to him, and if he thought she could he would leave home, but owing to his coal business he could not get away. Afterwards he said to this witness that if the latter was subpoenaed to testify, he could simply state that defendant had told him nothing about the case, and that he knew nothing about the facts. He also advised another witness to approach the girl for sexual favors.

Defendant testified in his own behalf. He denied he ever had sexual intercourse with the girl, and denied the statement and admissions attributed to him by the other witnesses. He produced evidence of good character, and testimony tending to show the reputation of Myrtle for truth and veracity was bad. He also offered evidence that Myrtle had said defendant only had intercourse with her once. The members of his family denied the familiarity of defendant with prosecutrix to which she testified.

In rebuttal the State introduced evidence of seven or eight witnesses to the effect that the reputation of prosecutrix for truth and veracity was good.

There is no error whatever in the record proper. The information is sufficient and charges all the essentials to bring the offense within the statute. The arraignment, impaneling of the jury and the verdict and sentence are all in due and regular form.

The defendant seeks a reversal upon two grounds, first, that the testimony of the prosecutrix makes out a case of rape and the court should have instructed the jury on the failure of the prosecutrix to make an outcry or complain of her treatment when opportunity offered; second, that there is no substantial evidence to support the verdict and it was the result of passion or prejudice.

I. The proposition that the State can select for prosecution a less or different offense of which a person is guilty, although he is guilty of a greater or different offense, is settled law in this State. This has been fully settled in prosecutions under the carnal-knowledge section and statutory rape of a female under fourteen years of age, in which it has been ruled that those offenses may be committed with or without force. [State v. Knock, 142 Mo. 515; State v Hamey, 168 Mo. 167; State v. Palmberg, 199 Mo. l. c. 254.]

Moreover, we do not think the court should have given the instruction in regard to rape, because, as was said in State v. Strattman, 100 Mo. l. c. 550, “this is a case where ‘actions speak louder than words.’ ” The jury might well have rejected the evidence as to force. See also See. 2535, R. S. 1899; State v. Bobbitt, 215 Mo. 10; State v. Wagner, 78 Mo. 644; State v. Sebastian, 215 Mo. 58.

II. To the contention that the testimony was insufficient to support the verdict, we are unable to agree. Notwithstanding the assault upon the testimony of the prosecutrix, it can he said that two juries of the county in which the offense was charged to have been committed heard her evidence, saw her demeanor on the witness stand and believed her.

So much depends upon the appearance and manner of a witness that it is with extreme reluctance that an appellate court should assume the right of disregarding a witness’s story. In this case there are no such contradictions or physical facts that would justify us in so doing. On this last trial, the girl’s testimony was corroborated by other evidence. There was no testimony showing she had been intimate with any other man; on the contrary, he had ample opportunities, if so disposed and she had no other masculine associates. While her testimony indicates she has had few advantages, intellectually or morally, it was for the jury who saw and heard her to determine whether she was worthy of belief and by their verdict they have said she was, and we see no reason for disturbing their verdict, and accordingly the judgment is affirmed.

Burgess and Fox, JJ., concur.