State v. Cunningham
| Decision Date | 18 November 1889 |
| Citation | 12 S.W. 376,100 Mo. 382 |
| Parties | The State v. Cunningham, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis Criminal Court. -- Hon. J. C. Normile, Judge.
Affirmed.
C. P. & J. D. Johnson and Silver & Brown for appellant.
1. Defendant's challenges to the jurors, Worsley, Sceele and Meyer, should have been sustained. They were incompetent to form either a part of the panel, or to sit in the trial of the cause. R. S., sec. 1897. This case does not come within the rule of a long line of decisions in this state, of which State v. Bryant, 92 Mo. 273, is the last. In those cases the jurors had no bias or prejudice. Here they had which it would take evidence to remove, and they further said that defendant would have to prove himself innocent, and it is submitted that these jurors were disqualified and that the statute must control. They could not form a part of the panel or serve on the trial. State v. Culler, 82 Mo. 623. (2) There was no evidence to sustain the verdict. There was not that force on the part of the defendant and resistance on the part of the woman necessary to constitute the crime of rape. State v. Burgdorf, 53 Mo. 65; Commonwealth v. McDonald, 110 Mass. 405; Brown v. People, 36 Mich. 203; People v. Brown, 47 Cal. 447; People v. Dohring, 59 N.Y. 374; Roscoe's Crim. Ev. [7 Ed.] p. 878. (3) Even if defendant used force in taking Mrs Gutting from her house, the crime was not at that time accomplished, and her subsequent conduct is conclusive of acquiescence, under circumstances which show that the least objection on her part would have availed her. Reg. v Hallet, 9 C. & P. 748; Bish. on Crim. Law [7 Ed.] sec. 1122, p. 633; Conners v. State, 47 Wis. 537; Whittaker v. State, 50 Wis. 518. (4) It is impossible, under the facts of this case, that there should have been any rape, except upon the theory that Mrs. Gutting was so insane as to be incapable of giving consent. In such case, it must be shown, in order to convict, that the defendant had knowledge of her mental incapacity. 1 Wharton's Crim. Law [9 Ed.] sec. 560; Croswell v. People, 13 Mich. 427; State v. Tarr, 28 Iowa 379; Commonwealth v. Burke, 105 Mass. 376; Reg. v. Barratt, 12 Cox's C. C. 498. There is no pretense that he had any such knowledge, and no evidence to show that her slight mental aberration, as manifested previous to the alleged outrage, was known, at that time, to any one but her husband. (5) The court erred in failing to instruct the jury upon the question of Mrs. Gutting's insanity and the necessity of defendant's knowledge of it in order to sustain a conviction. Authorities under last paragraph, supra. (6) Under the facts of this case, defendant's knowledge of Mrs. Gutting's insanity is an essential ingredient of the crime charged, and it was the duty of the court to instruct the jury upon the law of that branch of the case, although not requested to do so by the defendant. For its failure to do so it committed reversible error. State v. Branstetter, 65 Mo. 149; State v. Banks, 73 Mo. 592; State v. Palmer, 88 Mo. 568. (7) Under the statute (R. S., sec. 1253) there can be no rape without the exercise of force sufficient to overcome the utmost reluctance and resistance on the part of the woman. Crosswell v. People, 13 Mich. 427; Baldwin v. State, 15 Tex.App. 275; Rodriginz v. State, 20 Tex.App. 542. And this is so, even where the woman was suffering from dementia at the time of the alleged assault. Rodriginz v. State, 20 Tex.App. 542. To rape, it is essential that the act should be intended to be done with force and without the woman's consent. 1 Whar. C. L. [9 Ed.] sec. 562. If the defendant did not know that Mrs. Gutting was insane, and she consented, he intending to use no force, the crime was not made out. "Where the man is led from the conduct of the woman to believe that he is not committing a crime known to the law, the act of connection cannot under such circumstances amount to a rape." Roscoe's Crim. Ev. [7 Ed.] p. 878.
John M. Wood, Attorney General, for the State.
(1) The jurors challenged by defendant on their voir dire examination having formed their opinions solely from newspaper reports, and testifying that they could try the case fairly and impartially notwithstanding the impressions so received were competent. State v. Reed, 89 Mo. 168; State v. Wilson, 85 Mo. 134; State v. Hopkirk, 84 Mo. 278; State v. Stein, 79 Mo. 330; State v. Burgess, 78 Mo. 234; State v. Walton, 74 Mo. 270. (2) The instruction as to what constituted rape was correct. R. S. 1879, sec. 1253; State v. Montgomery, 63 Mo. 296; 2 Bish. Crim. Law, secs. 1113-1116.
OPINION
The defendant was convicted of rape, committed upon the person of Mrs. Gutting. Objections were made to several jurors for cause; and, as the ruling of the trial court upon the qualification of Mr. Worsey presents the strongest case in favor of defendant's objections, the examination of the other jurors need not be set out.
This juror upon his examination by the state, testified:
By counsel for defendant: Q. "You did form some opinion at the time of the occurrence, did you, when you read it in the newspaper?"
A. "Well, I thought it was a kind of a hard case, of course."
Q. "And you formed an opinion that it was a hard case?"
A. "At that time, yes, sir."
Q. "Well, you have nothing to change the opinion, have you?"
A. "Never thought of it since."
Q. "You have got that opinion yet?"
A. "Well, I have got that opinion yet, as I read it in the paper; if evidence is proved to the contrary, I can give a just verdict."
Q. "In other words, if you went on the jury you would have to have evidence to change that opinion you have formed?"
A. "Yes, sir."
Q. "If you were to take your seat now, you would have a bias or prejudice in your mind?"
A. "Yes, sir."
Q. "A bias and prejudice that would require evidence to remove?"
A. "Yes, sir."
Q. "In other words the defendant would have to prove that he was innocent?"
A. "Yes, sir."
He states on re-examination by the state, what he means is, that if the newspaper report is shown to be true, then he would retain the opinion he had formed; but, if the evidence showed another state of facts, he would arrive at a different conclusion.
By the court: Q. "Have you any prejudice in the case that would prevent you from giving him a fair trial?"
A. "Nothing to prevent me from giving him a fair trial."
Q. "Then would, or would you not, pay any attention to what you read in the paper?"
A.
Q. "In the court room?"
A. "Yes, sir."
In answer to other questions he says he could and would be guided by the evidence advanced on the trial. The examination of this juror is lengthy, but the foregoing presents the essential parts of it.
The statute provides that a juror may be sworn, though he has formed an opinion, if it be founded on rumor and newspaper reports and be such as not to prejudice or bias his mind. The rule repeatedly asserted under the statute is in substance this: A juror who states on his examination that he has formed and expressed an opinion as to the guilt or innocence of the accused, and that opinion has been formed from rumor or newspaper reports, and that it would require evidence to remove the opinion, is not an incompetent juror; provided it shall appear to the satisfaction of the court that such opinion will readily yield to the evidence in the case, and that the juror will determine the issues upon the evidence adduced in court free from bias. State v. Walton, 74 Mo. 270, and cases cited; State v. Bryant, 93 Mo. 273, 6 S.W. 102. This rule, so often asserted by this court, is in accord with that where it is said: The true doctrine is that, if a juror's conceptions are not fixed and settled nor warped by prejudice, but only such as would naturally spring from public rumor, or newspaper reports; and his mind is open to the impressions it may receive according to the law and testimony, he is not incompetent. 2 Graham & Wat. on New Trials, 378.
Now the opinion of the juror in this case was based upon what he had read in the paper over a year before the trial, since which time he had not thought of the matter. There is but one question left, and that is, whether it appears the opinion thus formed is such as not to bias his mind in the trial of the case. Does it appear that the opinion is one which will readily yield to the evidence? This question, it may be observed, in the first place, is to be tried by the trial court as a question of fact, and the finding of the trial court ought not to be disturbed unless it is clearly against the evidence. All doubts should be resolved in favor of the finding of the trial court. McCarthy v. Railroad, 92 Mo. 536, 4 S.W. 516. Moreover, the question as to the qualification of the juror must be determined, not from a few catch-words drawn from him by a series of questions, but from his whole examination, including his demeanor whilst on the witness stand. When he says he would have a prejudice and bias which it would take evidence to remove, and the defendant would have to prove his innocence, he is evidently speaking of the case on the supposition that the circumstances as stated in the newspaper report should turn out to be true. His attention is called to the newspaper account, his opinion...
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