State v. Marcks

CourtUnited States State Supreme Court of Missouri
Citation41 S.W. 973,140 Mo. 656
PartiesSTATE v. MARCKS.
Decision Date06 July 1897

1. Defendant and prosecutrix were in a kitchen, while her sister, who was his wife, was in a room across a hall. Prosecutrix was 16 years old, small of her age, and wore short dresses. She testified that while permitting him to play and wrestle with her, he seized her so unexpectedly that he had her under his power, and forcibly ravished her; that she screamed, and resisted with all her might, and never consented. She did not tell her sister, who entered soon after the occurrence, but told her mother a week thereafter. Defendant admitted intercourse, but denied the use of force. Held sufficient to sustain a conviction of rape, though the delay in complaining was unexplained.

2. Though defendant testifies, and denies a rape, he may be convicted thereof on the uncorroborated evidence of prosecutrix.

3. It was not reversible error to show that five weeks after an alleged rape defendant had the same gonorrheal disease that prosecutrix had one or two weeks after the commission of the offense, where defendant admitted sexual intercourse at the time it was charged he committed rape.

4. It is not error to refuse to exclude evidence that has been admitted without exception.

Burgess and Sherwood, JJ., dissenting.

In banc. Appeal from St. Louis criminal court.

Charles Marcks appeals from a conviction of rape. Affirmed.

Martin & Bass, for appellant. R. F. Walker, Atty. Gen., and C. O. Bishop, for the State.

GANTT, P. J.

The defendant was indicted at the May term, 1895, of the St. Louis criminal court, for rape alleged to have been committed by him upon one Nellie Berger, a female over the age of 14 years, in the city of St. Louis, on the 1st day of April, 1895. At the July term, 1895, he was duly arraigned, and entered his plea of not guilty, was tried and convicted, and his punishment assessed at five years in the penitentiary. From sentence on said verdict he appeals.

The testimony developed that defendant was a brother-in-law of the prosecutrix, having married her sister on 26th of February, 1895. He carried on a business of making "shop coats." The prosecutrix not only worked for him, but often visited his wife, her sister. On the morning of April 1, 1895, she went to his house, and when she arrived defendant and his wife had not yet risen. Her sister sent her on an errand, and while she was absent defendant and his wife arose, dressed, and ate breakfast. There were three rooms in the apartments occupied by defendant, — two rooms, a hall, and the kitchen across the hall. When prosecutrix returned that morning, she sat down on the bed in the kitchen with defendant and his wife, and they chatted and laughed a while, and then defendant sent his wife into the shop room across the hall to work. After her departure he began playing with the prosecutrix, wrestling with her in a joking way, as they often did. While 16 years old, she was still quite small, and wore short dresses. Her station in life appears to have been very humble. She seems to have permitted his familiarities as if he were her brother. She testified that while they were thus playing together on the morning mentioned he seized her so unexpectedly that before she could realize her position he had her completely in his power, and by force had sexual connection with her. She testified that she resisted his assault to her full ability, with all the strength she had, and never at any time consented to the intercourse. She testified: "I just screamed at first. Then I hollered, and I said, `My God, Charley; you are killing me.' He told me to shut up, and then I was in so much pain I couldn't holler." She says she did not tell her sister when she came into the room soon after the occurrence; that her sister had only been married to defendant a few weeks, and she hated to tell her. She told her mother about a week after the occurrence.

1. The sufficiency of the evidence to sustain a conviction for rape is challenged. We think there was sufficient direct and positive evidence to justify a conviction of rape in this case. Taking into account the age of the girl, that she was still wearing short dresses, the relationship of defendant, the familiarities permitted on account of that relation, the sudden attack and advantage taken of the girl, her resistance and cries, and her positive evidence that she never at any time consented to the intercourse, we think the criminal court properly submitted the facts to the jury. It is urged that she is not corroborated; that her own evidence destroys the charge of rape. But is she without corroboration? Without knowing what the defendant would testify, she went on the stand and testified (carefully and candidly, it seems to us) to the time when and place where the outrage was committed, and named the defendant as her despoiler. In all these essential particulars she was fully corroborated by the defendant himself, and contradicted by him only as to the force in accomplishing the penetration. She is also corroborated by the loathsome disease which he imparted to her. Is he to go acquit because she made no immediate complaint to her sister or her mother, or because she gives an unsatisfactory reason for her failure to do so? It is true, there is no evidence of threats of violence if she told of the outrage, but it is not to be forgotten that she was young and ignorant, and might well have hesitated at charging her sister's husband with such a crime to that sister. But let it be admitted that her delay was unreasonable, measured by ordinary experience, and that it is a circumstance which excites suspicion of her veracity, and tends to discredit her, the question arises, does it do more than this? Does it raise such a conclusive presumption against her evidence that an appellate court is justified in ignoring the verdict of a jury, and the refusal of the criminal court to set aside that verdict, on that ground alone? On this point we think the great weight of authority is to the contrary. In Higgins v. People, 58 N. Y. 377, Chief Justice Church, for the court, said: "Any considerable delay on the part of a prosecutrix to make complaint of the outrage constituting the crime of rape is a circumstance of more or less weight, depending upon the other surrounding circumstances. There may be many reasons why a failure to make immediate or instant outcry should not discredit the witness. A want of suitable opportunity, or fear, may sometimes excuse or justify a delay. There can be no iron rule on the subject. The law expects and requires that it should be prompt, but there is and can be no particular time specified. The rule is founded upon the laws of human nature, which induce a female thus outraged to complain at the first opportunity. Such is the natural impulse of an honest female. But if, instead of doing this, she conceals the injury for any considerable length of time, it naturally excites suspicion of fraud, and tends to discredit her." In State v. Peter, 8 Jones, 19, Chief Justice Pearson, for the court, discussing a charge in which the fact that the woman had not made known or complained of the outrage for two weeks was presented to the jury as a circumstance affecting her credibility, said: "It is not a rule of law that silence under such circumstances raises a presumption that the witness has sworn falsely. The passages in the books to which reference was made on the argument use the word `presumption' not as a rule of law, but an inference of fact, and treat silence as a circumstance tending strongly to impeach the credibility of the witness on the ground that a forcible violation of her person so outrages the female instinct that a woman not only will make an outcry for aid at the time, but will instantly and involuntarily after its perpetration seek some one to whom she can make known the injury, and give vent to her feelings. The want of this demonstration of feeling or involuntary outburst is treated of as a circumstance tending to show consent on her part; but it is nowhere held that this female instinct is so strong and unerring as to have been made the foundation of a rule of law as distinguished from a rule in respect to evidence, and the weight to which it is entitled, which is a matter for the jury." In State v. Knapp, 45 N. H. 148, the court said: "The grounds upon which is received the proof of complaints by the prosecutrix, made soon after the injury, are that they are corroborative of her testimony on the stand, and tend to repel the presumption that would arise from the absence of such complaints, for it is laid down very generally that, if such complaints are not made soon, or within a reasonable time, after the injury, or without an inconsistent delay, it is a strong, though not conclusive, presumption against the truth of the charge." It is equally well settled that the delay to make complaint may be explained by showing that it was caused by threats or undue influence of the prisoner. "It is, in truth, a question purely of fact, to be determined by the jury; and how much the delay in making complaint ought to weigh against the prosecution must depend upon the circumstances of each particular case." To the same effect, substantially, see State v. Niles, 47 Vt. 82; Young v. Johnson (N. Y. App.) 25 N. E. 363; People v. O'Sullivan, 104 N. Y. 481, 10 N. E. 880; Dunn v. State (Ohio) 12 N. E. 826. Our examination leads us to believe that the absence of an immediate complaint and the want of an outcry are strong and potent reasons why the jury should infer that the charge of rape is feigned and false, yet when there is positive evidence of force on the one side, and resistance to the full extent of the ability of the female on the other, the whole question becomes one of fact, and, where the verdict has met the approval of the trial...

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