3 S.W. 870 (Mo. 1887), State v. Wilson

Citation:3 S.W. 870, 91 Mo. 410
Opinion Judge:Norton, C. J.
Party Name:The State v. Wilson, Appellant
Attorney:A. McElhinney for appellant. B. G. Boone, Attorney General, for the state.
Case Date:March 21, 1887
Court:Supreme Court of Missouri
 
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Page 870

3 S.W. 870 (Mo. 1887)

91 Mo. 410

The State

v.

Wilson, Appellant

Supreme Court of Missouri

March 21, 1887

Appeal from St. Louis County Circuit Court. -- Hon. W. W. Edwards, Judge.

Reversed.

A. McElhinney for appellant.

(1) The instructions given by the court did not cover all the law in the case. This they should have done. R. S., sec. 1908; State v. Banks, 73 Mo. 592; State v. Brady, 87 Mo. 142. The jury were not told that to constitute rape there must be the utmost reluctance, and the utmost resistance on the part of the prosecutrix. State v. Burgdorf, 53 Mo. 65. So the jury should have been told the effect of the prosecutrix not having made complaint or outcry immediately after the alleged rape. Roscoe's Crim. Evid. [7 Ed.] 879. (2) The court erred in refusing to give the instruction asked by defendant. (3) The judgment is not supported by the evidence.

B. G. Boone, Attorney General, for the state.

(1) To the admission or exclusion of testimony, defendant, at the time, saved no exceptions, and will not be heard to complain. State v. Barnett, 81 Mo. 119; State v. McDonald, 85 Mo. 539; State v. Burk, 89 Mo. 635. (2) The instructions are sufficiently comprehensive, and correctly declare the law. R. S., sec. 1253. (3) A judgment, even in a criminal case, will not be reversed on the ground that the verdict was against the evidence, unless there is a total absence of evidence, or it fails so completely to support the verdict that the necessary inference is that the jury acted from prejudice or partiality. State v. Musick, 71 Mo. 401; State v. Warner, 74 Mo. 38; State v. Hammond, 77 Mo. 159. (4) On the trial of an indictment for rape, where there was direct conflict between the testimony of the prosecuting witness, who testified to all the material facts necessary to establish the charge, and that of defendant, who testified in his own behalf, upon the question of her consent, it being the peculiar duty of the jury to determine the credibility to be attached to witnesses, this court will not interfere with the judgment if no error appears in the record to justify a reversal. State v. Hert, 89 Mo. 590.

OPINION

Page 871

[91 Mo. 411] Norton, C. J.

Defendant was indicted, tried, and convicted of the crime of rape, in the circuit court of St. Louis county. From the judgment of conviction he appeals to this court, and for...

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