17 S.W. 666 (Mo. 1891), State v. Patrick

Citation:17 S.W. 666, 107 Mo. 147
Opinion Judge:Sherwood, C. J.
Party Name:The State v. Patrick, Appellant
Attorney:Blair & Marchand and J. E. Thompson for appellant. John M. Wood, Attorney General, and E. A. Dowell, Prosecuting Attorney, for the State.
Judge Panel:Sherwood, C. J. Gantt, J., concurs. Brace, J., concurs in paragraphs 2, 3 and 5, and in the result. Macfarlane, J., in paragraphs 1, 2, 3 and 5. Black, J., in paragraphs 2 and 3, and Thomas, J., doth the like. Barclay, J., absent. Thomas, J., dissenting. Black, J. concurs with Thomas, J. Thomas T...
Case Date:November 23, 1891
Court:Supreme Court of Missouri
 
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Page 666

17 S.W. 666 (Mo. 1891)

107 Mo. 147

The State

v.

Patrick, Appellant

Supreme Court of Missouri

November 23, 1891

Appeal from Lewis Circuit Court. -- Hon. Ben. E. Turner, Judge.

Reversed.

Blair & Marchand and J. E. Thompson for appellant.

(1) The court improperly allowed the prosecutrix to testify to former at tempts of rape upon her by defendant. Wharton's Crim. Ev. [9 Ed.] sec. 46, p. 45; sec. 48, p. 49; sec. 49, p. 49; secs. 29, 30, pp. 35, 36; secs. 32, 34, 35, pp. 37, 39, 40; 1 Greenl. Ev. [14 Ed.] secs. 52, 53; State v. Daubert, 42 Mo. 242; Parkinson v. People, 25 N.E. 764; Shipley v. People, 86 N.Y. 375; State v. Walters, 45 Iowa 389. (2) The conversations between prosecutrix and the brothers and sister-in-law of defendant offered to show a conspiracy between the latter to keep the prosecutrix from testifying were admissible for no purpose. State v. Parker, 90 Mo. 382. (3) Geo. Robinson should have been allowed to give his opinion as to defendant's ability to pull the prosecutrix over the fence. 3. Greenl, Ev. [14 Ed.] sec. 211. (4) There was no evidence upon which to base the fourth instruction for the state. The fifth instruction for the state is too broad. The sixth instruction for the state is wrong. The court should not have left it for the jury to determine whether or not the witnesses were successfully impeached. That was a question of law. Anderson v. McPike, 86 Mo. 293. (5) Instructions 3, 4, 5, 6 and 7 should have been given as asked by defendant. The prosecutrix is a competent witness, but the credibility of her testimony must be left to the jury upon the circumstances of fact that concur in that testimony. Which circumstances are, first, that she is of good fame; second, that she presently discovered (or made known) the offense, or, as others express it, "made recent complaint;" third, that party fled. 4 Black. Com. [Chitty Ed.] 213-14, 164; Russell, Crimes [2 Am. Ed.] p. 562; 2 Bish. on Crim. Proc. [3 Ed.] sec. 963; 1 Hawkins' P. C. 170; 1 Hale's P. C. 633-4; 1 East's P. C., 445, 446. There is no intimation that the case may be submitted to the jury without proof of concurring circumstances. Upon the other hand Blackstone says, if prosecutrix be, first, of evil fame; second, if she be unsupported by others; third, if she conceal the injury for any considerable time after she had opportunity to complain; fourth, if she might have been heard and made no outcry, these and the like circumstances carry a strong but not conclusive presumption that her testimony is false or feigned. 3 Greenl. Ev. [14 Ed.] secs. 212-13; 1 Whar. Crim. Law. [9 Ed.] sec. 565. If instructions asked did not suit the court it should have given its own and declared the whole law. R. S. 1889, sec. 4208. (6) More than the testimony of the prosecutrix is required to convict. Sack. Inst. [2 Ed.] No. 11, p. 767; Whar. Cr. Ev. [9 Ed.] sec. 273; State v. Wilson, 91 Mo. 410; 104 N.Y. 481; 10 A. 219; Dun v. State, 12 N.E. 826. If there is no outcry and prosecutrix remains friendly with accused after offense, these facts raise a strong presumption of innocence on the part of the accused. Barney v. People, 22 Ill. 160. The same presumption arises where there is no injury to the clothing and prosecutrix concealed the wrong for several days. State v. Cross, 12 Iowa 66. No outcry is strong evidence against prosecutrix's story. State v. Cone, 1 Jones (N. C.) L. 18; Cifford v. People, 87 Ill. 210; Eyler v. State, 71 Ind. 49; Leoni v. State, 44 Ala. 110; Topolank v. State, 40 Tex. 160; State v. Byrne, 47 Conn. 465. Where defendant denies the rape prosecutrix must be corroborated. Mathews v. State, 19 Neb. 330; Gazley v. State, 17 Tex. 267; People v. Trerney, 67 Cal. 54; Dickey v. State, 21 Tex. 430; Bailey v. Com., 82 Va. 107; Carney v. State, 21 N.E. 48, note; Hall v. People, 11 N.W. 414; State v. Cook, 22 N.W. 675; Lawson v. State, 17 Tex. 292. If there has been a want of promptness in making complaint or declarations the court should not admit evidence of complaint or declarations until delay has been satisfactorily excused or justified. No excuse shown in this case. Dunn v. State, 12 N.E. 826-29.

John M. Wood, Attorney General, and E. A. Dowell, Prosecuting Attorney, for the State.

(1) Prior sexual attempts on the same woman are admissible, for the purpose of showing the intent of defendant in making the assault. The testimony of the prosecutrix as to other attempts made by the defendant to have intercourse with her was properly admitted. These attempts were prior to the rape committed on her by defendant. Whar. Crim. Ev. [9 Ed.] secs. 28, 35, 46, 49, and notes; 1 Greenl. Ev., sec. 53, and notes; 3 Russ. on Crimes, 228, et seq.; State v. Cooper, 85 Mo. 256. (2) In cases of rape, and assaults with intent to rape, complaint made recently thereafter by the injured party, and efforts made to bring the offender to justice, is competent for the purpose of corroborating the story of the prosecutrix, and showing that she was guiltless of any misconduct leading to the assault. 1 Russell on Crimes, p. 922. (3) The testimony introduced on the part of the state, relative to the acts of defendant's brothers and Millie Patrick toward the prosecutrix, was admitted by the court for the purpose of showing whether the conduct and motive of prosecutrix in being at the place where she says she was ravished by defendant was consistent with innocence and purity. It was certainly admissible for this purpose. State v. Warner, 74 Mo. 83. It was further admissible, as was also the other testimony relative to the taking away of the prosecutrix from Martha Botts' place, where she had been left by her husband, and her conduct after she was taken away, not only for the purpose of showing that she was a pure and innocent woman and acting in good faith throughout, but as tending strongly to show a conspiracy among the parties, of which defendant was a co-conspirator, to spirit her away, and, by putting her in fear and contempt of her husband, to defeat the charge for assault with intent to rape, which had been preferred, by preventing her from appearing as a witness, and to prevent the institution of a prosecution for rape. Although the transactions extended over several days and were had at different places, still they had in view one common object, and evidence as to the declaration and conduct of all the parties concerned was competent. State v. Cooper, 85 Mo. 256, and authorities cited. "The object of the judicial investigation is the truth, and the tendency of modern ruling is, under reasonable rules, to exclude nothing that can throw light upon the transaction." Caughlin v. Hauessler, 50 Mo. 126; State v. Gabriel, 88 Mo. 631. The testimony as to these facts was all intimately connected with the main fact. It showed the consistency of the conduct, statements, testimony, and the purity of the prosecutrix, and the turpitude and inconsistency of the conduct of the defendant and his brothers and sisters, and was also properly received as bearing upon the main question. State v. Ernest, 70 Mo. 520; State v. Gabriel, supra; State v. Cooper, supra; State v. Warner, supra; State v. Nugent, 71 Mo. 136; State v. Greenwade, 72 Mo. 298; State v. Mathews, 98 Mo. 125. The general objections to the introduction of this evidence on the part of the state were made by the defendant, that it was "irrelevant, immaterial and incompetent." "Such objections are obviously bad where the evidence is competent in any way or manner to establish the contention of one of the adverse parties." State v. Meyers, 99 Mo. 120. (4) The opinion of John Robinson as to whether defendant would have had sufficient strength to drag the prosecutrix through the fence to rape her was inadmissible. It was not a matter for expert testimony. (5) No error was committed in giving the fourth instruction in regard to the flight of the defendant. State v. Jackson, 95 Mo. 652; State v. Williams, 54 Mo. 170; State v. Gee, 85 Mo. 649; State v. King, 78 Mo. 555; State v. Bush, 95 Mo. 199. (6) The fifth instruction, as to the credibility of the witnesses, was correct. State v. Talbott, 73 Mo. 347; State v. Vansant, 80 Mo. 70. (7) The sixth and thirteenth instructions should be taken together, and they properly declare the law as to the duty of the jury in considering and weighing the evidence. State v. Miller, 93 Mo. 263. (8) The third, fourth, fifth and sixth instructions asked by defendant were unsupported by the evidence in the cause, and were in the nature of a comment on certain portions of the testimony, and were otherwise erroneous. Instruction, numbered 10, given on the part of defendant, was the proper one to given on the questions presented in said refused instructions. State v. Wilson, 91 Mo. 410.

Sherwood, C. J. Gantt, J., concurs. Brace, J., concurs in paragraphs 2, 3 and 5, and in the result. Macfarlane, J., in paragraphs 1, 2, 3 and 5. Black, J., in paragraphs 2 and 3, and Thomas, J., doth the like. Barclay, J., absent. Thomas, J., dissenting. Black, J. concurs with Thomas, J.

OPINION

Page 667

[107 Mo. 152] IN BANC.

Sherwood, C. J.

The crime charged was rape, and on trial had the defendant was convicted. The punishment assessed was fifteen years in the penitentiary; but the trial court, believing the punishment greater and more severe than was warranted by the evidence, lopped off five years, and sentenced the defendant but for the remainder of the assessed term.

As, in the progress of this opinion, there will be a sufficient statement of the salient facts in this cause, it is unnecessary to set forth those facts now.

I. If universal precedents are to be followed, and the plainest principles of evidence are not to be ignored, the conversations which are said to have occurred between the prosecutrix and Millie, Tom and Jim Patrick...

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