State v. Warner

Oct 15, 1881
Reporters:
Before:
Norton
Norton, J.

Thе defendant was indicted at the March term, 1881, of the circuit court of Cass county, for the crime of rape. He was found guilty on trial, and his punishment assessed to imprisonment in the penitеntiary for six years. The case is before us on appeal, and we are asked to reverse the judgment because of alleged insufficiency of the indictment, and the action of the court in admitting improper evidence, in refusing proper and giving improper instructions, and the further ground that the verdict is not supported by the evidence.

i. bape indictment” The indictment is аs follows: “ The grand jury for the State of Missouri, empaneled, sworn and charged ‍‌​‌​​​‌‌‌​​​‌‌‌​​‌​‌​‌‌​‌‌​​​‌‌‌‌​​‌‌‌‌​‌‌​​​‌​​‍to inquire within and fоr the body of the county of Cass, and State aforesaid, upon their oaths *85present аnd charge that Henry Warner, on the 24th day of March, in the year of our Lord 1881, at the county of Cass, and State of Missouri, in and upon one Mary A. Culberson, unlawfully, violently and feloniously did make an assault, and her, the said Mary A. Culberson, then and there unlawfully, forcibly and against her will, feloniously did ravish and carnally know, against the peace and dignity of the State.” It is objected that thе indictment is defective in not alleging that Mary A. Culberson was a woman. This objection is untenablе. It is said in section 574, Wharton Criminal Law, page 508 : “ Sex need not be expressly eo momine averred. Thus, wherе an indictment ‍‌​‌​​​‌‌‌​​​‌‌‌​​‌​‌​‌‌​‌‌​​​‌‌‌‌​​‌‌‌‌​‌‌​​​‌​​‍for rape charges that the defendant1 with force and arms, etc., in and upon Mary Ann Taylor, * * violently and feloniously did make an assault, and her, the said Mary Ann Taylor, then and there violently and against her will, feloniously did ravish and carnally know,’ the court can and must see with cеrtainty that Mary Ann Taylor was a female.”

2 _instrue_ mons. At the close of the evidence on behalf of the State, the defendant asked the court to instruct the jury that under the evidence they must аcquit the defendant. It is only where there is no evidence tending to prove the offense charged that such an instruction should be given. ‍‌​‌​​​‌‌‌​​​‌‌‌​​‌​‌​‌‌​‌‌​​​‌‌‌‌​​‌‌‌‌​‌‌​​​‌​​‍In this case the prosecutrix swore positivеly that defendant had carnal connection with her against her will and consent, using the neсessary force to accomplish his purpose, overcoming such resistance as she was able to make. This instruction was, therefore, properly refused.

3 _: verdict: evidence. It is also сlaimed that the verdict is against the evidence, and that, for that reason, the judgment ought tо be reversed. It was held by this court in the-cage Gf the State v. Musick, 71 Mo. 401, that it will not reverse a judgment, even in a criminal ease, on the ground that the verdict ‍‌​‌​​​‌‌‌​​​‌‌‌​​‌​‌​‌‌​‌‌​​​‌‌‌‌​​‌‌‌‌​‌‌​​​‌​​‍is against the evidence, unless there is a total absence of evidence, or it fails so *86completely to support the verdict that the necessary inference is, that the jury must have acted from prejudice or рartiality. Governing this case by the above rule, the verdict and judgment thereon must stand. The instructiоns given submitting the questions involved in the case, were fair to defendant and unexee1‘’ mnable, аnd if the jury believed the evidence of the prosecutrix, who stood before them entirеly unimpeached as to character, they could not have found any other verdict, she having sworn positively that defendant committed the offense charged. Her evidence was only impeached or rendered improbable by the circumstance that thе offense was committed in one room of a house having two rooms, while her husband was in thе other, and she made no outcry. As an explanation of this impeaching circumstanсe, she stated that defendant was treating her for a womb disease, and that during his treatment hе passed his hands over her face and placed his lips close to hers and blew into her mouth, his hands and whiskers both having a sweetish medicine smell, under the influence of which she beсame weak and prostrated and could not cry out in a loud voice, that she resistеd all she could with her feet and hands, and that as soon as she recovered strength to get off the bed she made complaint to her husband ; that defendant claimed to be a faith doctor, that no one but himself and God knew he was a doctor, and that to treat her successfully no one must be present in the room. A physician testified that it was possible for сhloroform to be blown through a sponge into the mouth so as to produce stupor. These were matters for the jury, and without soiling these pages by giving in full the disgusting details of the transaction, it is sufficient to say that they might well have found as they did.

i_-evidenceres gestae. There was mo error in letting the fact go to the jury that she made complaint to her ‍‌​‌​​​‌‌‌​​​‌‌‌​​‌​‌​‌‌​‌‌​​​‌‌‌‌​​‌‌‌‌​‌‌​​​‌​​‍husband soon after the occurrence. 3 Greenleaf Ev., § 213, p. 176. Judgment affirmed,

in which all concur.