State v. Murphy

Decision Date09 November 1893
Citation25 S.W. 95,118 Mo. 7
PartiesSTATE v. MURPHY.
CourtMissouri Supreme Court

Appeal from St. Louis criminal court; Henry L. Edmunds, Judge.

Patrick Murphy was convicted of rape, and appeals. Affirmed.

McDonald & Howe, for appellant. R. F. Walker, Atty. Gen., Morton Jourdan, Asst. Atty. Gen., and C. O. Bishop, for the State.

GANTT, P. J.

The defendant in this case was indicted at the October term, 1892, of the criminal court of the city of St. Louis. The defendant, together with one Patrick Duffy, was charged with the rape of Mrs. Ellen Rose, a woman over 14 years of age, at the city of St. Louis, on the 2d day of November, 1892. The indictment was returned on November 3d, and for want of time to hear the cause at October term was continued to the November term. At the November term it was again continued "as on affidavit," and specially set down for January 30, 1893. A severance was granted defendant on January 4th. On January 30th defendant was arraigned, his plea of not guilty entered, a continuance refused, and cause set down February 6th, at which time both sides announced ready, and cause was tried to a jury, and defendant convicted, and his punishment assessed at 30 years in the penitentiary.

The evidence in this case is such as to cause a regret that it should ever find a place among the records of this court. Certainly it is such that it should not stain the published reports. For the purposes of this opinion it is sufficient to say that the evidence discloses that on November 2, 1892, Frank T. Rose and his wife, Ellen Rose, came from their farm near Falling Springs, in St. Clair county, Ill., with a wagon load of produce, consisting of vegetables, butter, eggs, and honey. During the day they sold their produce, and about 5 o'clock started for their home, by way of the Cahokia ferry, their usual route. When they reached the ferry, they were informed by the ferryman that he would not make another trip that night. While considering whether they should go up the river and cross the bridge, they were persuaded by one Schweigeler, who kept a lodging house and saloon, to stay all night with him. His establishment was on the levee, between Anna and Sidney streets, near the ferry landing. They put up their horses, had their supper, and after supper Mrs. Rose concluded that she would visit a relation of hers on Papin street, some distance up the city. Mr. Rose was suffering from rheumatism, and the weather was cold, with a drizzling rain prevailing, and on this account did not accompany his wife. Mrs. Rose was then about 58 years of age, the mother of 6 children. Leaving her husband, she went to Broadway; thence north until she reached the French market. Here she was overtaken by the rain, and took refuge in the market, near the junction of Broadway and Chouteau avenue. On account of the rain, she abandoned her visit to her relative, and, after the rain, started to return to her husband. She, however, stopped at a grocery store where she had had some dealings. It appears to have been after 11 o'clock when she reached Anna street on her return. On Anna street she met or passed two police officers, Anton and Manger. Of these she inquired the way to Schweigeler's, and they directed her to go down Anna street to the river. When she had gone about two blocks east on Anna, after passing the officers, she was suddenly seized by two men, and forcibly carried into a lumber yard, and, according to her evidence, cruelly outraged. Her evidence is corroborated by Officer Anton, who, on his return to that vicinity of his beat that night, heard her groans. Being attracted thereby, he went into the lumber yard, where he discovered this defendant on top of Mrs. Rose, and heard his obscene expressions. Immediately by him, only about four feet distant, sat his co-defendant, Duffy. The officer hurried to the spot, and gave defendant two or three strong slaps with his club, and arrested both the defendant and Duffy. He testifies that during all this time Mrs. Rose was groaning as if in great pain. Her clothing was covered with mud; her underclothing bloody and torn; her nose bleeding and bruised; and when she reached the police station there were marks showing she had been choked severely. Mrs. Harris, the police matron, who saw Mrs. Rose during the forenoon of that day, (November 3d,) fully corroborated the facts as to her bruises and bloody condition and the mud on her clothing.

Defendant's defense was very equivocal. Having been caught by the officer, and kept under arrest, he made no attempt to deny that he and Duffy were with Mrs. Rose, but sought to make the impression that she solicited them to receive those favors of her, unsolicited by them. When asked in chief by his counsel if he ravished her, or if he had connections with her, his answer was, "No, sir; not then." Later on he denied that he either raped her or had connection with her at all, voluntary or otherwise. He admitted, however, that when the officer Anton appeared on the scene he was lying by the side of the old lady, in the lumber yard, on the wet ground, in a misty rain. It was also a part of the defense that Mrs. Rose was intoxicated that night. As to this her husband swore she was perfectly sober when she left him to go up town. Both Anton and Manger, the officers, swore she was not drunk, or at least had none of the signs of intoxication about her, when she passed them about midnight, on Anna street. Mrs. Harris, the matron, says she had no appearance of having been drunk next morning. It was attempted to show by a saloon keeper and two or three other witnesses that about 12 o'clock that night she was in the saloon of one Menge; that while there she drank three glasses of beer, and called for the fourth, which was refused her. Menge identified Mrs. Harris, the matron, as the woman who was in the saloon, but, as soon as he discovered that it was the matron, took it back. Mrs. Rose positively denies ever being in that saloon that night, and the identification was exceedingly unsatisfactory. The only explanation defendant gave of the compromising position in which he was caught by the officers was that the old lady had asked them to show her the way to the ferry, and he and Duffy wanted to show her. There was evidence that defendant had a good character for sobriety, truth, and veracity and morality in that neighborhood.

1. The point made in this court that the criminal court erred in refusing a continuance cannot be considered by us, because no exception was saved to the refusal.

2. Among other things, appellant complains that the court refused to permit him to ask Mrs. Rose "if the officer Anton did not induce her to come over to St. Louis and make this prosecution." The court did exclude this question, but defendant's counsel immediately propounded this question: "What inducement, if any, did Officer Anton make to you to induce you to come over here and make this prosecution?" This question the court permitted, and she answered fully that "he didn't make any inducement." The two questions are so similar that it is absolutely certain that no harm did or could have accrued from the refusal of the first, when the second was permitted. State v. Sansone, (Mo. Sup.) 22 S. W. 617; State v. Smith, (Mo. Sup.) 21 S. W. 827.

3. It is also suggested as error that the court erred in permitting the prosecuting attorney to offer in evidence the bloody underclothing of the prosecuting witness, after having first fully identified them, and accounted for their keeping. The objection was not that these garments were not competent, but that their evidence "was not responsive to any examination made by counsel of defendant." The objection was not good for the reason assigned, or for any other legal reason. The clothing so identified was competent evidence tending to show the injuries inflicted, and to corroborate the other evidence on the part of the state.

4. Nor was there any error in permitting Mrs. Harris, the matron, to testify as to the...

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