State v. Yocum

• Decision Date: 09 November 1893
• Parties: STATE v. YOCUM.
• Court: Missouri Supreme Court

23 S.W. 765

117 Mo. 622

STATE v. YOCUM.

Supreme Court of Missouri, Division No. 2.

November 9, 1893.

RAPE — ASSAULT — EVIDENCE — INSTRUCTIONS.

1. The defense cannot show what prosecutrix said to a doctor, examining her a week afterwards, as to how the assault occurred.

2. When the court has postulated that the offense must have been done forcibly, and against the will of prosecutrix, it is no error to refuse charges requiring it to have been done by force and against her will, notwithstanding her resistance, and to gratify defendant's passions, at all events, notwithstanding said resistance.

3. A verdict finding defendant guilty of an "assault to commit rape" is sufficient.

Appeal from circuit court, Jasper county; W. M. Robinson, Judge.

Chris. Yocum, convicted of an assault with intent to commit rape, appeals. Affirmed.

J. W. McAntire, for appellant. R. F. Walker, Atty. Gen., for the State.

GANTT, P. J.

At the September term 1892, of the Jasper circuit court, an indictment containing two counts was returned by the grand jury, — the first, charging the defendant with rape upon Nancy Roten; the second, with an assault with an intent to rape her, — on the night of the 4th of August, 1892. Defendant was duly arraigned and entered his plea of not guilty. The cause was tried at Joplin, at the December term 1892, and the following verdict rendered by the jury: "We, the jury, find the defendant, Chris. Yocum, guilty of an assault to commit rape, and assess the penalty at three years in the penitentiary. Henry J. Blackwell, Foreman." A motion for a new trial, assigning various grounds, was filed in due time, and overruled. The errors assigned in this court relate to the exclusion of evidence, and the giving and refusing of instructions, all of which will appear in the order of the defendant's brief.

1. The defendant complains that the circuit court refused to permit Dr. Swartz to state what the prosecutrix said to her about a week after the rape was attempted. The question was, "State if the girl told you anything about her condition, and what declaration she made to you?" Upon the objection of the prosecuting attorney, the court said, "You may examine her as to what she said about her organs at the time, — what complaint she made, — but nothing as to how it occurred." To which counsel for defendant excepted, and said: "We propose to prove by this witness that, at the time she made the examination of the prosecuting witness, [about one week after the alleged attempt,] she made a statement as to how this occurred, at the time she claims to have been raped." The court thereupon ruled that anything the girl may have said, at that time, as to how it happened, was incompetent, and defendant excepted. It will be observed that this question in no way referred to the statement made by the prosecutrix, constituting a part of the...