The State v. Huff

Decision Date26 March 1901
Citation61 S.W. 900,161 Mo. 459
PartiesTHE STATE v. HUFF, Appellant
CourtMissouri Supreme Court

Appeal from Pike Circuit Court. -- Hon. D. H. Eby, Judge.

Reversed.

James O. Barrow and Pearson & Pearson for appellant.

(1) There is no evidence in this case to support a verdict for rape. (a) To support a verdict of conviction for rape there must be proof of force used on the part of defendant, or intimidation; and of the utmost resistance on the part of the prosecuting witness. R. S. 1889, sec. 3480; State v Burgdorf, 53 Mo. 65; State v. Perkins, 11 Mo.App. 82. (b) Prosecuting witness was not corroborated. "The prosecutrix, in a trial for rape must be corroborated and when her testimony as to the perpetration of the alleged offense is explicitly contradicted by the defendant, thus creating an equipoise of oath against oath the evidence will be insufficient to support a verdict." State v. Patrick, 107 Mo. 168; Matthews v State, 19 Neb. 330; Gazley v. State, 17 Texas App. 267; People v. Tierney, 67 Cal. 54; Dickey v. State, 21 Texas App. 430; Bailey v. Com., 82 Va. 107; Carney v. State, 118 Ind. 525; Hall v. People, 47 Mich. 636; State v. Cook, 65 Iowa 560; Lawson v. State, 17 Texas App. 292. (2) The verdict is so manifestly unjust and against the great preponderance of the evidence that it can not be otherwise than ascribed to passion and prejudice, and not to that calm weighing of the facts in evidence, which should always characterize the deliberations of a jury. On such occasions this court should not hesitate to set the verdict aside. State v. Jaeger, 66 Mo. 179; State v. Primm, 98 Mo. 372; State v. McNamara, 100 Mo. 117; State v. Packwood, 26 Mo. 340; State v. Burgdorf, 53 Mo. 65; State v. Mansfield, 41 Mo. 470; State v. Daubert, 42 Mo. 238; State v. Brosius, 39 Mo. 634. (3) The statute requires the court to instruct the jury in writing upon all questions of law arising in the case. It is a question of law as to whether the testimony of a prosecutrix in a rape case should be corroborated. It is a very essential element for the information of the jury in making up their verdict. A failure to so instruct is good cause for setting aside the verdict of the jury and granting a new trial. R. S. 1889, sec. 4208; State v. Patrick, 107 Mo. 173. There was no instruction given the jury as to whether or not prosecutrix's testimony should be corroborated. For this error the judgment should be reversed. (4) The court committed reversible error in this case in allowing the prosecutrix to testify that a third party came to her and told her to testify to a certain fact; also offered her money to go away and not testify at all. State v. Jaeger, 66 Mo. 180; State v. Patrick, 107 Mo. 154.

Edward C. Crow, Attorney-General, Sam B. Jeffries, Assistant Attorney-General, and Geo. W. Emerson, Prosecuting Attorney, for the State.

(1) Defendant cites Revised Statutes 1889, section 3480, State v. Burgdorf, 53 Mo. 65, and State v. Perkins, 11 Mo.App. 82, to sustain his contention that there was no evidence to support the verdict. The evidence in the above cases are so totally different from the evidence in the case at bar that they are not in the least applicable here. (2) Defendant insists that the court erred in not instructing the jury that prosecutrix should have been corroborated. In State v. Dusenberry, 112 Mo. 292, this court said that the circuit court properly refused an instruction to the effect that prosecutrix in rape cases must be corroborated. State v. Wilcox, 111 Mo. 569. (3) The State suggests that the judgment in this case can not be set aside or arrested for the purpose of reversing the case or discharging the defendant for the reason that no motion in arrest of the judgment was filed by defendant in the circuit court which fact is substantiated by the record as found in the bill of exceptions. R. S. 1899, sec. 2692.

SHERWOOD, P. J. Judge Gantt votes for reversal and remanding; Judge Burgess concurs in reversal and discharge, but does not concur in sheriff's return having to show he visited residence, etc., and he does not concur in the "legal curio," expression.

OPINION

SHERWOOD, P. J.

Ten years in the penitentiary was the term of punishment which the jury awarded to defendant on a charge of having ravished his stepdaughter Hattie Kent, a girl of fifteen years of age, on the sixth day of October, 1898, and judgment went according to the verdict.

One of the grounds of the motion for a new trial is that there is no evidence to support the verdict. The evidence has, in consequence, been most thoroughly examined.

Numerous errors are also assigned as reasons for reversing the judgment rendered. The statements made by counsel on either side are far from satisfactory, especially so, because of the assertion that "there is no evidence," etc.

Adopting such portions of defendant's abstract as will answer my purpose, I will make such additions thereto, and emendations thereof, as may be requisite.

Hattie Hopkins, the prosecutrix, testified: "My father's name was Richard Kent; he died April 9, 1894, and my mother married the defendant about three years ago. My mother had four children by her first marriage, and the defendant had three by his first marriage; their names are Frankie, who is nine years old, Johnnie and Lena Huff. On the night this offense was alleged to have been committed, I was at my home in Prairieville, with my little brother, Fadie, twelve years old and the defendant's three children. We were all down stairs in the front room. My mother and older sister were at the drugstore in Eolia, about one mile south from Prairieville. We were all asleep in the front room down stairs, that is, myself, Frankie Huff, Johnnie Huff, Lena Huff and Fadie Kent. Between nine and ten o'clock defendant came and broke a window. That waked me and I halloed to Frankie to get up and see who it was. She let him in. He made Frankie and me dress and get on the horse with him, saying he was going down to the store and kill my sister and mother. We went down part of the way to Eolia, then turned and came back. He put the little girl down and told her to run into the house. I jumped off the horse and started to run, but he held me and said if I did not stay there he would kill me. The horse was left in the yard that night. He took me around to the barn. Then we went to the house and he drew his pistol on us, told us if we did not go up stairs, he would kill us, and went on up stairs. I went up stairs, he stayed down stairs. Frankie and I were both in the front room up stairs. In about one-half hour he came up stairs in his underclothes. His little girl and myself were screaming and he took me into the back room and threw me down; he got all my undergarments off but one foot, and forced my legs apart. Frankie came in and begged her papa not to do me that way, and holloed for Dick Henry, the nearest neighbor, and he drawed his pistol on her and made her go back into the front room."

Prosecutrix then stated in response to the prosecuting attorney's questions: "Well, he threw me down and fucked me." The two last words the prosecutrix repeated at the instance of the prosecutor. "The next morning I told my mother and sister Oney who returned that morning, and we went over to Mr. Smith's and had him arrested. With reference to the time we were at the barn, "he tore my underclothes off of me, before he threw me down, then he threw me down and did the same to me he did upstairs." This answer was made to a direct question by the State's attorney, as to what defendant did at the barn, and this was permitted notwithstanding the witness had exhibited no unwillingness to testify, and at the barn she said she was screaming, and defendant threatened her with the knucks and pistol. Such direct and leading questions as that just mentioned are a striking feature of this case, all through the examination in chief of prosecutrix. Thus: "Did he say anything else he was going to do, that you remember of?" "Then what was done?" "Where did you go then?" "What did he do when he came up there?" "What did he do then?" "State what he did then?" Such questions were vainly objected to by defendant as leading and suggestive, the court remarking in overruling the objections, "What the defendant did or said at the time would be competent," which was not the ground of the objections made, but that the witness was being led step by step, and not allowed to tell her own story in her own way.

The prosecutrix then stated that she remained at Mr. Smith's that day, then went to Bowling Green, then to the sheriff Hopke's, where she remained about twenty days, when her mother went up after her and sent her home; that after reaching home she went to William Huff's, father of defendant, and from there she went with her mother and him, to Troy, to R. H. Norton's office; that she was married to Hopkins first day of November, 1898; last saw Hopkins at Hopke's, the sheriff's; don't know where Hopkins is now. Was married at Jim Huff's, defendant's uncle.

Was examined by three doctors three or four days after alleged offense.

On cross-examination witness testified: Oney never had lived with the family since defendant married her mother; she was living out, never lived as a member of the family, "since her and him has been married."

But she testifies that Oney did come with the family from their old residence when they moved from there to within a mile and a half of Eolia, defendant's present place of residence and had just gotten back home when the supposed offense was perpetrated. That "my stepfather and her (Oney) never got along good together." That stepfather was never kind and good to witness; mistreated her, and she didn't like him. Dick Henry's house, a...

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