Champagne v. Hamey

• Decision Date: 20 June 1905
• Citation: 88 S.W. 92,189 Mo. 709
• Parties: CHAMPAGNE v. HAMEY, Appellant
• Court: Missouri Supreme Court

88 S.W. 92

189 Mo. 709

CHAMPAGNE v. HAMEY, Appellant

Supreme Court of Missouri, Second Division

June 20, 1905

Appeal from Buchanan Circuit Court.-- Hon. A. M. Woodson, Judge.

Reversed.

Culver Philip & Spencer for appellant.

(1)The trial court erred in refusing to sustain a demurrer to the evidence.The theory of the court was that there was a scintilla of evidence to go to the jury, that the testimony of the plaintiff if true, made a case, and though her testimony was uncorroborated, unreasonable and unnatural, and opposed to all the probabilities, circumstances and physical facts, still it was the duty of the court to submit the case to the jury, and the province of the jury to determine whether her testimony was true or false.We respectfully submit that such is not the law in this State.The court should direct a verdict for either party where the facts are undisputed and the witnesses unimpeached, or where the verdict, if returned for the opposite party, would be set aside as against the law and the evidence -- and this, though there be a scintilla of evidence.Morgan v. Dinfee,69 Mo. 476;Bank v. Hamline,68 Mo.App. 487.Courts will not stultify themselves by giving credence to evidence which is in conflict with conceded physical facts, or against reason and contrary to common observation and experience.In criminal and civil cases, where the testimony is contrary to the daily experience of common life, or at war with the conceded and indisputable physical facts, neither courts nor juries can, without stultifying themselves, yield to it an iota of probative force or effect, and a verdict based on such testimony will not be permitted to stand.Payne v Railroad,136 Mo. 575;Lien v. Railroad,79 Mo.App. 475;Kelsay v. Railroad,129 Mo. 362;State v. Dettmer,124 Mo. 435;State v Nelson,118 Mo. 124;State v. Bryant,102 Mo. 24;State v. Turlington,102 Mo. 642;State v. Anderson,89 Mo. 332;Hayden v. Railroad,124 Mo. 566;Lane v. Railroad,132 Mo. 4.We do not claim that plaintiff must be corroborated by another witness before she is entitled to have her case submitted to a jury.But we do claim that she is not entitled to go to the jury, and not a single case, civil or criminal, can be found in the books in which a verdict against a defendant in an action or prosecution for rape has been permitted to stand, where the case is bottomed upon an uncorroborated statement of the complainant, as unreasonable, as unbelievable and so entirely opposed to common knowledge and experience and all the other facts and circumstances in evidence, as is the statement of the plaintiff in the case at bar.Upon the authority of the opinion of all of the judges of this court the evidence in this case is not sufficient to take the case to the jury.And that opinion is sustained by all the authorities.State v. Hamey,168 Mo. 167;State v. Patrick,107 Mo. 147;Topolanck v. State,40 Tex. 160;1 Wharton, Crim. Law (9 Eed.), sec. 565;Matthews v. State,19 Neb. 330;Price v. State38 S.W. 988;State v. Chapman,88 Ia. 254;State v. Connelly,57 Minn. 482;Mores v. Territory,65 P. 165;Monroe v. State,13 So. 884;Robinson v. Musser,78 Mo. 153;23 Am. and Eng. Ency.Law (2 Ed.), 883.(2) In refusing instruction 13 the court committed error.State v. Witten,100 Mo. 528;State v. Patrick,107 Mo. 169;State v. Wilson,91 Mo. 410;Yeager v. Berry,82 Mo.App. 534;Young v. Johnson, 25 N.E. 363.

Grant S. Watkins for respondent.

(1) It is not the law in this State that corroborative testimony must be had in order to base a verdict for damages for rape.The demurrer was properly overruled.State v. Marks,140 Mo. 664;State v. Hamey,168 Mo. 167, 90 Mo.App. 416;State v. Knox,142 Mo. 521.(2) There was no evidence on which to base an assumption that the act complained of was by consent; it was either committed as plaintiff states, or not at all by defendant.The instruction was not proper in case at bar.State v. Hamey,168 Mo. 167.(3) When defendant denied having intercourse with plaintiff, he attacked her reputation for virtue, chastity and truthfulness and put her character in issue.Defendant also attempted to discredit plaintiff's testimony by asking her if she did not testify in former trial to facts contrary to what she had testified to in case at bar.Character in cases of seduction and rape, slander, etc., are excepted cases, and the nature of the action puts character in issue.23 Am. and Eng. Ency.Law, 870.Defendant introduced evidence of his good character; if her character was not in issue, neither was his.Defendant cannot adopt one theory in the trial court and another in the appellate court, nor can he complain of a theory which he himself adopted.Dudley v. McClure,65 Mo. 243;Vawter v. Hultz,112 Mo. 639;Toomey v. State, 8 S. & M. 104.

OPINION

FOX, J.

This cause is here upon an appeal from a judgment against the defendant in the Buchanan County Circuit Court.The cause of action upon which this judgment rests, is thus stated by the plaintiff:

"Plaintiff for cause of action, states that she is an infant of the age of seventeen years; that she was on the 7th day of June, 1899, just a few days past sixteen years old; that her mother is dead and that Mrs. Erwin was her foster mother and took her when she was about two years old; that she lived with her foster mother until the latter part of March, 1900.That the defendant is the son-in-law of her foster mother and married her foster sister; that her foster mother, defendant and her foster sister live almost in the same yard; that during all her lifetime, plaintiff had at times helped her foster sister and worked for her sister and looked to the defendant and plaintiff's foster sister for protection, and was by given consent under their control.That her foster mother lived on the property belonging to the defendant and relied on defendant for support; that the house in which the plaintiff and her mother lived was close to the house in which defendant and his wife, plaintiff's foster sister, lived.

"Plaintiff further states that in the evening on or about the 7th day of June, 1899, defendant came to the house where plaintiff lived with her foster mother, and found plaintiff alone and found plaintiff's foster mother was away from home; that defendant, finding plaintiff alone, caught plaintiff and threw plaintiff on the bed and took a large pillow and placed it over plaintiff's face so that plaintiff could not hollow and threatened plaintiff and forcibly ravished plaintiff and had intercourse with plaintiff; that plaintiff fought until she was exhausted, but that defendant accomplished his purpose; that on account of said aforesaid act, plaintiff became pregnant with child and on the 3rd day of March, 1900, a child was born, being the child of defendant.Plaintiff further states that, on account of said aforesaid act of defendant, plaintiff's life is ruined and that plaintiff is disgraced and that she is compelled to support her child, all of which is caused by said defendant by his criminal acts as aforesaid.

"Wherefore, plaintiff says she is damaged in the sum of twenty thousand dollars.Wherefore, plaintiff prays judgment in the sum of twenty thousand dollars and for such other and further relief as the court may deem proper."

The answer was a general denial.

The facts upon which this judgment is sought to be supported, were substantially as follows:

The plaintiff testified that she was 16 years of age in May, 1899.The alleged assault occurred June 7, 1899.Her mother having died, Mrs. Erwin, the defendant's mother-in-law, took her to raise when she was two years old, and from that time on she lived with Mrs. Erwin in a two-story house on a farm belonging to the defendant's father.The defendant was raised on the same farm.He was a married man, 36 years of age, and his family consisted of his wife and children, the oldest 11 and the youngest 3 years old at the time of the alleged assault.The defendant, his wife and children, the defendant's father and the plaintiff's father lived in a two-story house on the same farm in the same yard about 80 feet from the house in which Mrs. Erwin and plaintiff resided.

The testimony of the plaintiff is that on the evening of June 7, 1899, she was alone in her home.About 8:30 o'clock she was standing in the front room combing her hair.It was dusk and getting dark.Some one entered and threw his arms around her waist and kissed her.She jerked free and turning, recognized the defendant.She ran towards the door, but before she could escape he caught her again, dragged her to a bed in the room and threw her upon it.She struggled to get away from him, but she could not.She tried to scream, but he forced a pillow over her mouth and prevented her.She testified that she resisted, but he raised up her clothes and raped her; that she fainted, and when she regained consciousness the defendant was standing by the side of her bed.He helped her up, saying, "My God, Jess, don't tell my wife," but she says she didn't say that she would or that she would not.Then he went over to his house while she went out on the porch and sat down.She testified that at the time she was a pure, innocent girl, a few months past sixteen years old, strong and healthy; that she had never had intercourse with any man.Upon cross-examination plaintiff testified that the doors and windows to her home and defendant's home were open, and that at the time her foster mother, her father, defendant's father and his wife were in the other house in the same yard not more than 90 feet away.

The plaintiff made no complaint that she was under restraint, or influence of threats or that she apprehended any violence from the defendant.It further...