111 Mo. 569 | Mo. | 1892
Defendant was convicted in the circuit court of Macon county of rape, by carnally knowing Ollie Wilcox, a female child under fourteen years. From the judgment he has appealed to this court.
The evidence of complaining witness, if true, discloses a most revolting picture of domestic life. . She testified that defendant was her father, and that she was fourteen years old May 10, 1891, and that from the time she was eight years old until April, 1891, he had defiled her at intervals of every few weeks, the last time in Macon county in April, 1891.
She removed to Macon county with her father’s family about two years prior to the trial which occurred October 26, 1891. The testimony of this witness was all the evidence offered by the state in chief.
The defendant testified in his own behalf, and contradicted every charge testified to by the prosecutrix. He also gave a history of his relations with his family, and showed that they were invariably good; that within the last few years he was frequently away from home, as much as weeks and months at a time. In all of this he was corroborated by his son, Willie, eighteen years of age, who further testified that his father’s treatment of his wife and children was good, and that he had never seen or heard of any misconduct between his father and Ollie until after the arrest; that he was raised and had lived in the family all his life except a few months he had worked out.
Dr. Pickett testified to the improbability, and almost impossibility, of the story related by the prosecuting witness.
An effort was made to impeach the character of defendant for truth. Three witnesses with some qualifications testified that his reputation was bad, while four gave evidence tending to prove it good.
The court gave, with others, the following instructions: “The jury are instructed that although they may believe from the evidence that in the commission of the offense charged there was no force used by the defendant on Ollie B. Wilcox, yet if the jury believe from the evidence that at any time in the county of Macon before the finding of the indictment in this cause, and while she was under fourteen years of age, the defendant had carnal intercourse with the said Ollie B. Wilcox, then you will find the defendant guilty.
“The jury are instructed that the defendant, William D. Wilcox, is charged with carnally and unlawfully knowing one Ollie B. Wilcox, a female child under the age of fourteen years; therefore, if you believe from the evidence that the defendant did carnally know the said Ollie B. Wilcox while under the age of fourteen years, then the state is not required to prove that the defendant forcibly ravished the said Ollie B. Wilcox. It is sufficient for the state to prove that the defendant had intercourse with her while she was under the age of fourteen years.”
I. It is urged with great earnestness by counsel for defendant that the uncorroborated evidence of Ollie "Wilcox, the complaining witness, contradicted as it is by the positive and unequivocal testimony of defendant, is insufficient to justify or support the verdict and sentence, The majority opinion in the Patrick case (107 Mo. 147) is confidently cited in support of this contention. The fourth paragraph of that opinion,' in which the learned judge who wrote it so ably discusses the necessity that prompt complaint be made, and other circumstances be shown corroborative of the evidence of the- prosecutrix, and the. conclusions reached therein, were not concurred in by a majority of the judges. It will be seen that the fifth paragraph is introduced by an assertion of the inferences to be drawn from the authorities cited and the conclusion reached in the fourth paragraph. Here the expression is used upon which the defense in this case so confidently relies: “Where, as here, the defendant occupies the witness stand and explicitly denies the perpetration of the offense charged, thus creating an equipóse of oath against oath, then the evidence is wholly insufficient, as there is no corroboration whatever in this case.”
After this introduction, the learned judge proceeds to argue the absolute insufficiency of the evidence to support a conviction, and in his conclusions a majority coincided. The decision settled nothing but that, in the opinion of a majority of the judges, the evidence in that case was insufficient, and followed numerous precedents in like cases, that where the evidence is clearly
The Patrick case and the case at bar are different in almost every essential feature of the offense charged. Carnally and unlawfully knowing a female child under fourteen years of age is made rape under the statute; with this crime defendant is charged. Forcibly ravishing a woman of fourteen years or over is also rape, and of committing that offense, Patrick was charged. These acts are different in every element, except that of carnal knowledge, and calls for different proof. In the Patrick case, the crime was charged to have been committed by forcibly ravishing; in this case it was by simple carnal knowledge. The first involves force on the part of the ravisher and want of consent on that of the victim; the latter may have been without force and with consent. In the one case the instincts of woman’s nature, at the first opportunity, should have spontaneously given utterance to her anguish on account of the wrong committed; in the other the child may have been anxious to conceal the wrong and protect the wrongdoer. These distinctions between the criminal acts, and the difference in the proof necessary to establish them, are sufficient to show that the failure of a wronged child to make outcry or complaint has but little if any weight in discrediting her testimony. Indeed, it would have' hone at all in ease the wrong was done with her consent, and her testimony was given unwillingly.
It will be seen by reference to the authorities cited in the Patrick case that long delay in making com-. plaint “may be explained and excused by proof of sufficient cause therefor; as, for instance, want of suitable
There is another and better ground, to our minds, than fear of personal injury, which tends to excuse this girl for keeping silence. According to her story, the first act was committed when she was only eight years of age, not old enough to understand the signification of the wrong done her. Thus from that day she was trained and corrupted by her own father by repeated acts until she probably lost those womanly feelings which prompt instinctive utterance of horror and anguish at such outrages.
"We cannot say then that the evidence of this prosecutrix should be altogether ignored. Improbable as her evidence may be, contradicted on collateral facts as the witness is, monstrous as the accusation against defendant may be, it is still, after all, a question of fact for the trial court and jury, and this court should not interfere.
II. The second error assigned is that, under the instruction complained of, the jury may have found defendant guilty of some offense committed in Randolph county. We do not think the jury could have been misled from this instruction into such an error. The first paragraph of the instruction requires the jury to find that the offense must have been committed in Macon county. The second does not refer to the place at which the act was committed, but to the manner of its accomplishment and to the evidence necessary to establish it. We do not see how an intelligent jury
We find no error and affirm the judgment.