| Mo. | Nov 21, 1905
On the 21st day of June,. 1904, the defendant was convicted of rape upon the person of one Alice J. Wood, and his punishment fixed at twelve years’ imprisonment in the State penitentiary, under an information theretofore filed by the prosecuting attorney of Lewis county with the clerk of the circuit court of said county, charging that defendant, in said county, on the 28th day of June, 1903, in and upon one Alice J. Wood, unlawfully, violently and feloniously did make an assault, and her, the said Alice J. Wood, then and there unlawfully, forcibly and against her will, feloniously did ravish and carnally know, against the peace and dignity of the State.
The facts are substantially as follows:
On Saturday evening, June 27, 1903, there was a festival at Salem schoolhouse in Lewis county. The night was dark, but light enough to see a short distance. Ben Byers attended said festival in an old buggy with a dark red running-gear, drawn by a sorrel horse. He took two small children with him, a nephew and niece, to the festival early that evening, returning with them to his mother’s house, and then, about eight o’clock, went back to the festival. What time he afterwards returned home is not shown by the evidence, but his mother did not call him till dinner-time on Sunday, when he came downstairs from his bedroom, accompanied by the defendant. The schoolhouse alluded to was distant some two miles from the Byers home.
The defendant attended said festival in a two-horse buggy. About eleven o’clock Ben Byers made an engagement to take Miss Anna Wilson home from the festival, but afterwards asked to be excused for the reason, as he stated, that defendant was going home with him to stay all night; and besides Miss Wilson had decided to go to another place, which láy in another direction from the schoolhouse. The prosecuting witness was at said festival and met the defendant there. 'She had only met him once before, in January, 1903, at a ball in Lewiston. Miss Wood attended the festival in company with her cousin, John Browning, arriving at the schoolhouse about nine o’clock. Defendant, who was then nineteen years old, asked the prosecutrix for her company home at about eleven o’clock. She declined, saying that she had come there with her cousin. Defendant replied, ‘‘He don’t care; we will see him.” He then took her out to supper and on the way met her cousin. She asked her cousin if he cared whether defendant took her home, and he replied that he did not. Defendant and the prosecutrix had supper and then
Sherman McGovern testified that he saw the prosecutrix after midnight that night at his father’s house; that her hair hung down around her shoulders; that the back of her dress was stained with dirt and her dress torn at the waist; that she looked scared, was crying and asked for some one to take her home. She stated that she had been to Salem schoolhouse to a supper and was going home with the defendant and that the buggy ran into a ditch and upset. On the way home with her, this witness noticed a two-horse buggy standing in the road. As soon as prosecutrix saw the buggy she said, "There he is again," and stepped behind the witness and started to run. After leaving her at her home, this witness went down to where she said the buggy had run into the ditch. There he found a lady’s handkerchief, which belonged to the prosecutrix; also a lap robe, a buggy whip and a piece of a buggy step. Witness examined the ground and saw buggy tracks leading into the ditch and noticed where they turned around and came back. He found another buggy track and followed it up to near the said “troublesome bridge,” where it led up close to a fence by the side of the road. The track was a fresh one, and the buggy had been drawn by two horses.
Mr. Pishback testified that he and his family attended this festival and returned home between twelve and one o ’clock. WThile he was unhitching his team he heard some one hollow down near the bridge; it was a rather fine voice.
Mrs. Wood, mother of the prosecutrix, testified that her daughter attended the festival in a one-horse buggy in company with her cousin, John Browning, her brother going with them, but riding a pony. The two boys returned about midnight, but her daughter came back with Sherman McGovern at two o’clock. As soon as she saw her daughter, the mother noticed that her hair was all down and her clothes torn and bloody and that she was nervous and sick. She made complaint then and there to her mother that Bruce Sykes and a stranger had ravished her. On examination, the mother found her daughter’s arms bruised, her legs swollen, and parts bloody. Witness said that the blood was not caused by the daughter’s monthly period.
Mrs. Robinson testified that she was at the Wood home on the Monday after the festival, and that she examined the prosecutrix. She found bruised places on her arms, legs and neck, and her parts swollen and inflamed. Her mental condition that day was unusual; she was crying and screaming. The witness further testified on cross-examination that the prosecutrix told her that her father was away from home Sunday, and that she felt so bad she didn’t know what to do; so she went over to her aunt’s that day.
J. D. Johnson testified that he was sheriff of Lewis county, and that a warrant for the arrest of defendant was delivered to him on July 10, 1903. After making trips to various places, and sending out a number of letters and telegrams, he heard from J. D. Rizor, a deputy sheriff, that defendant was near Spearfish, South Dakota, He telegraphed Rizor to arrest him, and defendant was arrested on August 4. While on the way. to Missouri the sheriff asked the defendant if he saw Ben Byers rape the girl, and his reply was, “No, it was so dark I could not see whether he raped her or not."
W. A. Rizor, deputy sheriff of Spearfish, South Dakota, testified that he arrested defendant on a ranch in his county on August 4, 1903; that defendant was known there by the name of Jack Wilson and that he (defendant) denied knowing any man named Byers. Defendant afterwards admitted to him that he took a girl home from a school entertainment and that he arranged with Byers to take his buggy; that Byers passed him (defendant) on the road, tied his team and came back, and that by that time he had the girl out of the buggy and was trying to ‘ ‘ do business ’ ’ with her. The girl resisted him, saying that she would rather walk than do anything of that kind; that Byers came up and grabbed the girl and she began screaming, and that Byers threw her down and did business with her. That he, the defendant, then came up and acted like he was going to
It was admitted and proven in open court that the defendant testified at former trials that he made an arrangement with Ben Byers on the evening of June 27, 1903, to exchange his team and buggy for Byers’ buggy and horse; that defendant was to turn the horse into the pasture and leave the buggy there on the same night on which he exchanged buggies with Byers at the home of Mrs. Byers.
B. L. Gridley testified that he was the official reporter of the court, and took down defendant’s testimony at a former, trial. That defendant then testified that on that night he got a one-horse buggy with red running-gear, drawn by a sorrel horse, from one Ben Byers; that he put his arm around the prosecutrix and kissed her after they had passed Fishbaek’s house, but that he had no wrong purpose in his mind and heart; that he put his hand on her leg, but that he did so without any evil purpose.
Dr. J. C. Brown testified that on August 9,1903, he examined the prosecutrix and found the hymen perforated and torn aside; that it had been penetrated and had not sloughed off by disease.
Other witnesses testified that Ben Byers was between twenty-five and thirty years old, weighed one
On behalf of defendant John McGovern testified that on Monday after this trouble he saw a buggy track leading into' his field and saw where it turned around and went out the same gate. He noticed tracks in a ditch near where the buggy was supposed to have been broken.
C. J. Kendrick testified that he heard of defendant’s trouble, advised him to leave, and assisted him to do so. "Witness saw defendant twice after the trouble, but defendant said nothing to him about it. Finally he went to see defendant, but learned that he was at John Brown’s some fourteen miles away, in Shelby county. After going to Brown’s the witness saw defendant and advised him to leave and bought him a railroad ticket from Shelbina to Spearfish. He drove a buggy and horse to Shelbina and left on the 11 p. m. train. The defendant’s father returned witness the amount of cash he had advanced defendant.
Defendant testified that he first met the prosecutrix at a ball in Lewiston, in January, 1903, and next met her at the ice cream supper at Salem schoolhouse. It was nearly eleven o’clock when he took her out to supper that night; that it was arranged for defendant to take her home instead of her cousin, and that defendant exchanged his buggy for Ben Byers’ buggy. He denied looking back on the way home, but admitted putting his arm around prosecutrix and kissing her, she making no objections. He also pulled up her dress and felt of her leg, but that he did not mean anything by it; that prosecutrix became somewhat indignant at his actions and jumped out of the buggy; that he did not mean to insult her and he got out of the buggy to try to get her to come back, but that she refused to ride further with him. That just then some man passed and she began screaming for help, but the man threw her down; that he came up and tried to interfere, and the
P. N. Graves, a justice of the peace, testified that the first affidavit filed with him charged the defendant with assault with intent to rape.
The State, in rebuttal, also proved the good reputation of prosecutrix for chastity and virtue and for truth and veracity, and the same was expressly admitted by defendant. Evidence in rebuttal was also offered by the State to show that John Browning, cousin of prosecutrix, who took her to the festival, in returning home therefrom drove into the field by mistake and turned around and came back, which tends to contradict defendant’s statement that he drove into this field while on his way home from the festival with prosecutrix.
The first question presented for consideration by this appeal is as to whether the court erred in overruling defendant’s objections to twenty-three men summoned as members of the panel of jurors, upon the ground that they were all shown on their voir dire examination to be incompetent and disqualified to sit as jurors upon the trial of the cause. Under the statute (sec. 1837, R. S. 1899) defendant was entitled to a panel of forty qualified, impartial jurors from which to make his selection of twelve to sit in judgment upon the case.
Of the challenged jurors, J. W. White, M. B. Hubbard, "W. C. Turner and A. A. Turner were passed without objection. As a rule the other jurors had formed or expressed an opinion founded on rumor or newspaper reports, many of the jurors not even knowing the prosecuting witness or the defendant, but they invariably stated that they would be governed by the evidence in the case and could and would give the defendant eu fair trial if selected to sit as jurors in the case. There seemed to be an effort upon the part of defendant’s counsel to confuse the jurors by improper or misleading questions touching their qualifications, so that the answers in several instances seem absurd; but they all stated that they were not prejudiced against the defendant and could give him.a fair trial. It is true some of them said they were prejudiced against this kind of case or crime, but not against a man charged with such crime before being proven guilty. It was held in State v. Bryant, 93 Mo. 273" court="Mo." date_filed="1887-10-15" href="https://app.midpage.ai/document/state-v-bryant-8009110?utm_source=webapp" opinion_id="8009110">93 Mo. 273, and in State v. Williamson, 106 Mo. 162" court="Mo." date_filed="1891-04-15" href="https://app.midpage.ai/document/state-v-williamson-8010198?utm_source=webapp" opinion_id="8010198">106 Mo. 162, that persons who have formed opinions of the guilt of an accused upon trial for crime, from rumor or newspaper reports, are not for that reason rendered incompetent to sit as jurors on the trial of the case, where they answer upon their voir dire that they can give the defendant a fair and impartial trial. [State v. Duffy, 124 Mo. 1" court="Mo." date_filed="1894-07-09" href="https://app.midpage.ai/document/state-v-duffy-8011445?utm_source=webapp" opinion_id="8011445">124 Mo. 1.] A juror who states on his voir dire examination that he has formed and expressed an opin
The jurors were, we think, competent, and the court correctly so held.
It is insisted by defendant that it was improper to admit evidence of the alleged admissions of the defendant as against Byers, and then to show the independent acts of Byers as against the defendant, and upon this showing to assume a conspiracy and give instructions on the guilt of Byers as principal rapist, and this defendant as a principal before the fact.
It is not necessary that a conspiracy to commit crime should be proven by express agreement between the parties thereto, but it may be shown by facts and circumstances from which it may be inferred. That there was a conspiracy between Ben Byers and the defendant to commit an assault upon Alice J. Wood, for the purpose of having carnal connection with her, we think clear. The facts and circumstances heretofore set out justify the inference that there was such conspiracy. But it was not necessary that Ben Byers should be joined in the information in order to the introduction of evidence by the State to show that a conspiracy did in fact exist between them. Wharton on Criminal Evidence (9 Ed.), sec. 700, says: “It makes no difference as to the admissibility of the act or declaration of a conspirator against a defendant, whether the former be indicted or not, or tried or not, with the latter; for the making one a co-defendant does not make his acts or declarations any more evidence against another than they were before; the principle upon which they are
It is said for defendant that error was committed in permitting the State to show, over the objection of defendant, the flight of Byers, as tending to show that he was the accomplice of defendant in the commission of the crime. We are not advised by whom this proof was made, unless it be T. H. Bradshaw, a witness for the State, the admission of whose testimony with reference to Byers is assigned as error, but an examination of his testimony fails to show anything with respect to the flight of Byers or his absence from the country. We are therefore expected, we presume, to look through-this large record, containing over three hundred and seventy-five pages, to find, if we may, what witness it was that testified to this effect. Granting, however, that the evidence of T. IT. Bradshaw was inadmissible, in no instance was objection made to any material question put to him until after it was answered, and it was then too late. A party cannot sit by during the examination of a witness by an adverse party, and before interposing an objection to a question wait until the witness answers, and, if the answer suits him, whether the question be proper or not, accept it, and if it does not suit him, object. If, however, the answer be not responsive to the question, and is objectionable upon that ground, the proper course to pursue, if it be desired to remove any prejudicial effect that the evidence might have on
But pursuing the same line of inquiry as to the flight of Byers, his mother, a witness for the State, with whom he lived up to that time, was asked if she had ever heard of him, directly or indirectly, since the 13th day of July, 1903. The question was objected to as being incompetent, irrelevant and immaterial because no part of what happened at the time the alleged aider, abetter or conspirator was present, and because any act of Ben Byers, not done with the knowledge and consent of defendant, could not bind defendant. The objection was overruled and defendant excepted. The witness answered that she never had. While we think the objection should have been sustained upon the ground of irrelevancy or immateriality, as suggested by defendant in his bill of exceptions, we do not think the answer could in any way have prejudiced the rights of defendant, or that the judgment should be reversed upon that ground.
Defendant complains that he was tried, as shown by the evidence and instructions of the court, for two crimes: i. e., (1) aiding and abetting Byers in the commission of a rape upon the prosecutrix, and (2) the commission of the crime by defendant himself. The argument is that by proceeding this way the defendant was not informed of the nature and the cause of the accusation against him. Upon the other hand, the State contends that only one crime was committed, although there were two separate and distinct rapes upon the prosecutrix, one by Byers, aided by the defendant, and the other by defendant. Each of these acts constituted a part of this transaction and crime, and it was competent to prove both against defendant as parts of the
Section 2364, Revised Statutes 1899, provides that, “Every person who shall be a principal in the second degree in the commission of any felony, or who shall be an accessory to any murder or other felony before the fact, shall, upon conviction, be adjudged guilty of the offense in the same degree, and may be charged, tried, convicted and punished in the same manner, as a principal in the first degree." So that it is perfectly plain that the defendant was properly informed against, tried, and convicted as principal in the first degree.
The acts of Byers and defendant in assaulting and ravishing the girl constituted but one offense, the result of one common purpose, and the fact that Byers first assaulted her while Sykes looked on, and after he got through defendant did the like, did not make two separate and distinct offenses; so that the evidence with re
It is contended by defendant that the ninth instruction given on behalf of the State is erroneous. It reads as follows: “The court instructs the jury that Miss Alice J. Wood is the prosecuting witness, and is called the prosecutrix, that she has no interest in the case whatever other than that of a witness, and that her testimony is to be weighed exactly like that of any other witness in the case; and the jury are to believe or disbelieve her and allow such weight to her testimony as their judgment, under the evidence, shall dictate. Arid the jury are further instructed that they may convict the defendant on the uncorroborated evidence of the prosecutrix, Alice J. Wood, provided that they believe from the evidence, beyond a reasonable doubt, that the defendant is guilty of rape as charged. And the jury are instructed that the defendant is a competent witness in his own behalf, but the fact that he is a witness in his own behalf, and the interest he has at stake in this cause, may be considered by the jury in determining the weight and credibility of his testimony.”
The argument is that if the prosecutrix had been wronged, she would naturally desire to see some one punished for it, and that, while she is not a real party to the suit, she is a nominal party and more likely to
As we have said, the two different acts of rape constituted but one offense. If two different persons should in rapid succession, one after the other, shoot, kill and
As to the defendant himself, does the evidence tend to show a conspiracy between him and Byers to assault and ravish the prosecuting witness, and the ravishing of her by defendant in pursuance thereof, regardless of any thing that Byers may have said or done after the crime was completed? We attach no importance whatever to the fact that she may have, two weeks after the alleged rape, made a complaint against defendant for an attempt to rape. It is at least charitable to say that she did not, in all probability, know the difference between rape and an assault to commit rape, and it is not to her discredit that she then made the lighter charge; besides, she may, in the first instance have entertained some doubt as to defendant’s guilt of the graver offense, for she states in her testimony that she became unconscious just after defendant got on her person and felt his private touch hers, and as she could not swear to the fact of penetration, so far as defendant was concerned, she therefore, doubtless, supposed at that time that a charge of assault to commit rape was the proper one. But that defendant raped her is shown by the circumstances leading up to and connected with the crime. Indeed, he admitted to witness Rizor
When all the facts detailed by the various witnesses are considered together, there is no escaping the conclusion that Byers and defendant were acting in concert from the time they exchanged buggies at the schoolhouse until this horrible crime was perpetrated, and that defendant was not only present, aiding and assisting Byers in the commission of this rape, but that he also took advantage of the helpless and distressed condition of the girl, and ravished her himself. Sykes, however, denies this, and testifies that he started to the girl’s assistance, but that the man who was in the act of ravishing her told him that if he came any closer he would shoot him, and he got scared and retired until the man left her, when he then went to the girl, picked her up and carried her to his buggy. But his story
In conclusion, we will say that this is, perhaps, the most outrageous case of its character, and the most brutal and revolting in all of its details, of any which has been before this court. The evidence, to our minds, shows defendant’s guilt beyond any reasonable doubt. He has had a fair trial, and the judgment should be affirmed. It is so ordered.