100 Mo. 525 | Mo. | 1890
The defendant was indicted, tried and convicted of rape in the Grundy circuit court in the month of March, 1887.
The prosecuting witness, Mattie Moore, had been a member of the family of John Witten, the father of defendant, Reece Witten, for five or six years before the outrage, which she says was committed after harvest, in 1885. She was then sixteen or seventeen and the defendant twenty-four or twenty-five years old. There were two second-story rooms in the house, one occupied by her as a bed room, and the other by defendant. The old folks left home on Friday and returned on the following Sunday, and the crime, it is claimed, was committed on Friday night. The prosecuting witness says: • “Reece came to my door and said ‘if you don’t open the door I will burst it open, ’ I opened the door and he threw his arms around me. He took advantage of me. I told him to go away, and if he did not I would tell the old folks. He said ‘If you do I will make it damned hot for you.’ I cried and fought and he had his arms around my body. I resisted to the utmost, and did everything I could to get away from him, but could not. He had intercourse with me and then went back to his room.” On cross-examination she said : “I don’t know whether I struck him or not. I did not bite, kick or pinch him or call for help. He put his arms around me and put me on the bed.* I tried to push him away with my hands, and then I reached up and got hold of the bed and tried to pull myself away from him.”
Her evidence is to the further effect that there was no one at the Witten residence that’ night but herself and Reece; that the next morning she went a half-mile to a neighbor’s and got a girl to stay with her; that after
The evidence of the defendant in his own behalf is an admission of improper relations with the girl for a period as far back as 1884, but a denial of the use of any force on any occasion. Other evidence introduced by him is that in March, 1885, he supposed the girl was in a family-way and confessed his conduct to his father; the alarm proved a false one. At that time Mrs. Witten accused the girl of misconduct with defendant; she at first denied the charge, but being told that Reece had confessed and that she would have to leave, she admitted the charge, and promised to refrain in the future. Mrs. Witten says she next learned of their renewed intimacy in July, 1886. The girl is. reported to have said on several occasions, before and after the defendant’s arrest, that they were equally to blame. The first assertion made by her that defendant used force was made to the prosecuting attorney, which was after the birth of the child.
The defendant’s ninth refused instruction is as follows: “If the jury believe, from the evidence, that at the time the offense is alleged to have been committed, the prosecuting witness made no outcry and did not, *as soon as an opportunity offered, complain* of the offense to others, but concealed it for a considerable length of time thereafter, then the jury should take this circumstance into consideration with all the other evidence in determining the guilt or innocence of the defendant and whether, in fact, a rape was committed or not.”
The inference to be drawn from the concealment of the alleged outrage is, of course, one of fact; and it may be said the jury should be left to make such inference from that and the other facts in the case as accords with their judgment. As a general rule, it is an usurpation of the functions of a jury for the judge to tell them what conclusion or presumption of fact they
The defendant’s fifth instruction relates to the credibility of the witnesses, and is not a fair substitute for the one refused.
Misconduct of the juror, Thomas R. Berry, is also assigned as a ground for new trial. After the trial had commenced, and during the cross-examination of the prosecuting witness, she became confused, and refused to answer questions, depressed from the heat of a crowded room, some of the affidavits say—and the court allowed her to leave the room, during which time the court took a recess for about one hour. The juror, without the consent of the court, the defendant or any officer, left the jury-box and went down stairs, unattended by any one, into the recorder’s office, where he remained, according to the positive affidavit of the recorder, for the space of forty-five minutes. During
The judgment is reversed and the cause remanded. Sherwood, J., is of the opinion the judgment should be reversed without remanding the cause.