State v. Hilsabeck
| Decision Date | 04 February 1896 |
| Citation | 34 S.W. 38,132 Mo. 348 |
| Parties | The State v. Hilsabeck, Appellant |
| Court | Missouri Supreme Court |
Appeal from Barton Circuit Court. -- Hon. D. P. Stratton, Judge.
Affirmed.
Cole & Burnett for appellant.
(1) The court erred in overruling defendant's application for a continuance. State v. Lee, 98 Mo. 609. An application for a continuance by defendant, on account of the absence of material witnesses, which is the first one made and which meets with the requirements, should be granted. State v. Bradley, 90 Mo. 160. Defendant was entitled to have his witnesses present. State v. Berkley, 92 Mo. 41; State v. Niederer, 94 Mo. 79; State v Dyke, 96 Mo. 298. And he is entitled to reasonable time after change of venue. State v. Anderson, 96 Mo 241. (2) The second instruction says, "You will take into consideration the character of the witnesses, his or her interest on the stand, his or her interest, if any, in the result of the trial," etc. The jury should be instructed that they "may" not, "should," or "will" take into consideration his interest in the result. State v. Fairlamb, 121 Mo. 148; State v. Cook, 84 Mo. 49; State v. Young, 99 Mo. 676. (3) It was improper to comment on defendant's failure to testify to any particular fact. State v. Fairlamb, 121 Mo. 150; State v. Elmer, 115 Mo. 401; State v. Graves, 95 Mo. 510; State v. Walker, 98 Mo. 118; State v. Mahly, 68 Mo. 319; State v. Lee, 64 Mo. 165. (4) H. H. Blanton, prosecuting attorney, in his closing argument to the jury said that, "Governor Stone had never refused to pardon an innocent man, that had been convicted on perjured testimony, and he never would, either." The remarks objected to were entirely out of the record, unauthorized by the evidence in the case, and prejudicial to the rights of the defendant. State v. Elmer, 115 Mo. 404; State v. Ulrich, 110 Mo. 350; State v. Young, 99 Mo. 666; State v. Kring, 64 Mo. 595. (5) The state introduced evidence of the sheriff of Vernon county, Missouri, for the purpose of showing flight, which was admitted over the objection of the defendant. The testimony of defendant and other witnesses for the defense, showed that defendant was not fleeing from arrest, but at the time he was arrested he was in his own room, at his boarding house; and the court, by proper instructions, should have submitted this to the jury. State v. Taylor, 118 Mo. 180. (6) Defendant's motion in arrest should have been sustained. The indictment was not signed by the prosecuting attorney and is insufficient in law. State v. Bruce, 77 Mo. 193. (7) Defendant having subpoenaed his witnesses in due time was entitled to have compulsory process to secure their attendance. Mo. Const., art. 2, sec. 22. (8) In this state the proof of an assault with intent to commit rape must show that the defendant's intention was to force compliance with his desires at all hazards, regardless of the utmost resistance of the female. The evidence in this case shows no such intent. State v. Priestly, 74 Mo. 24; State v. Owsley, 102 Mo. 678; State v. White, 52 Mo.App. 289. (9) It must be remembered that there is a wide difference between an assault with intent to commit rape and an assault with intent, merely, to have an improper sexual intercourse. State v. White, 52 Mo.App. 289, and cases cited. (10) The court, if it submitted the cause to the jury at all on the record, should have given an instruction on simple assault, and not have left the jury with the impression that the matters sworn to, no matter how they were regarded, made out an assault with intent to commit rape, or nothing. The evidence warranted an instruction for simple assault, and it was the duty of the court to declare the law. R. S. 1889, sec. 4208; R. S. 1889, sec. 3950; State v. Turlington, 102 Mo. 642; State v. Taylor, 118 Mo. 153.
R. F. Walker, attorney general, H. H. Blanton, prosecuting attorney, E. L. Moore, and M. T. January for the state.
(1) The trial court did not believe the application for a continuance was made in good faith, viewed in the light of the counter affidavits filed by the state as well as the testimony of some of the witnesses themselves on the hearing of the application, and as the testimony desired was either incompetent, immaterial, or cumulative, the court did not err in overruling said application. The defendant had already escaped trial at one term of the Vernon court by taking a change of venue. State v. Dettmer, 124 Mo. 426. Absence of impeaching witnesses is no cause for continuance. State v. Howell, 117 Mo. 307. (2) There is no merit in appellant's second point, and the cases cited thereunder are wholly inapplicable. Those cases condemn the use of the word "shall" in the instruction frequently given in criminal cases calling special attention to the testimony of the defendant. No such instruction was given in this case; the instruction attack is usual stereotyped formula employed in both civil and criminal cases, concerning the methods of determining the weight to be given to the testimony of the witnesses in general, and approved in innumerable cases, of which the following may serve as an example, in which the court found no error "after a patient investigation of the record." State v. Smith, 114 Mo. 406. In the next place, the cases cited condemn the word "shall," whereas, the word here used is "will," which is frequently directory and especially in this connection. Webster -- Will. (3) Appellant's third and fourth points are not before this court for review. Statements of prosecuting attorneys can not be preserved by ex parte affidavits or in the motion for new trial. State v. Taylor, 118 Mo. 163; State v. Paxton, 126 Mo. 500; State v. Jackson, 126 Mo. 521. Upon this point see State v. Emory, 79 Mo. 463; State v. Duffy, 124 Mo. 11. No objection was made at the time or exception saved to remarks of counsel for the state. State v. Welsor, 117 Mo. 570; State v. Taylor, 98 Mo. 240; State v. Pagels, 92 Mo. 300. (4) Defendant's fifth assignment (not true in fact) is not properly here for review, as no exception was saved at the time the alleged failure to instruct occurred. State v. Cantlin, 118 Mo. 111; State v. Paxton, 126 Mo. 514. (5) The word "attest" before the signature of the prosecuting attorney may be considered surplusage. It did not prejudice the substantial rights of defendant. State v. Kinney, 81 Mo. 101. (6) The testimony was amply sufficient to support a conviction. State v. Shroyer, 104 Mo. 441. It was for the jury to determine, under all the facts and circumstances, what defendant's intent was. State v. Whitsett, 111 Mo. 202; State v. Dusenberry, 112 Mo. 277; State v. Banks, 118 Mo. 121. (7) There was no evidence upon which to base an instruction for simple assault, and no such instruction was asked or exception saved at the time. State v. DeMosse, 98 Mo. 340; State v. Noeninger, 108 Mo. 166; State v. Foster, 115 Mo. 451; State v. Cantlin, 118 Mo. 111; State v. Nickens, 122 Mo. 607; State v. Paxton, 126 Mo. 500. (8) The court very properly admitted the testimony in reference to the bad moral character of the defendant. State v. Raven, 115 Mo. 423; State v. Shroyer, 104 Mo. 446; State v. Rider, 95 Mo. 486; State v. Rider, 90 Mo. 63; State v. Miller, 71 Mo. 591; State v. Clinton, 67 Mo. 391; State v. Hamilton, 55 Mo. 523; State v. Braden, 58 Mo. 507; State v. Day, 13 Mo. 423; State v. Shields, 13 Mo. 236. However, the question is not for review here, no proper objection being made. No sufficient reason was assigned. Grounds of objection to evidence must always be specific, or this court will disregard them. State v. Smith, 114 Mo. 406; State v. Moore, 117 Mo. 395; State v. Harlan, 130 Mo. 381. The reason assigned was "immaterial," "incompetent." This court has held that equivalent to no reason at all. Stone v. Hunt, 114 Mo. 66. The rule is the same in criminal as in civil cases. State v. Blunt, 110 Mo. 322.
For an attempt made on the fifth day of July, 1894, to ravish Anonyma, a young girl not quite fifteen years of age, defendant was indicted in the county of Vernon, at the November term, 1894. In December following defendant requested and obtained a change of venue and one was awarded to Barton county, where a trial resulted in his conviction and sentence to the penitentiary for the term of five years, and he appeals to this court.
The record proper in this case has been made out very well, but the bill of exceptions, that is to say, that portion which contains the evidence, has been typewritten with a machine so old and decrepit that what purport to be the letters stagger across the page in zigzag courses, frequently overlapping each other, and frequently altogether omitted, and the result is that the evidence is almost illegible, and has required much time and pains to decipher it.
The testimony of the prosecutrix is to the effect: That on the third of July, 1894, she met the defendant standing in front of the barber shop where he was employed, and as he passed he bowed to her. That on the fourth she took a walk with defendant, and again on the fifth, in the afternoon, they walked together out in the northeast part of Nevada, to a commons, and arranged to go again after supper. That about 6:30 she rode horseback to the commons, where she met defendant, who assisted her from her horse; that she took her riding skirt and spread it upon the ground and they both sat down upon it. That shortly thereafter she took off her hat. The place where they sat down seems to have been somewhat lower, though not a great deal, than the surrounding ground. The prosecutrix testified that after talking a few minutes the defendant pushed her over upon her back, got upon her and attempted to rape her; that she resisted him and attempted to...
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