State v. Allen

• Decision Date: 19 May 1903
• Citation: 74 S.W. 839,174 Mo. 689
• Parties: STATE v. ALLEN.
• Court: Missouri Supreme Court

74 S.W. 839

174 Mo. 689

STATE v. ALLEN.

Supreme Court of Missouri, Division No. 2.

May 19, 1903.

RAPE — WHAT CONSTITUTES IT — EVIDENCE — SUFFICIENCY — TRIAL — ERRORS CURED — RIGHT OF ACCUSED TO COUNSEL.

1. Any irregularity existing in arraigning defendant and receiving his plea of guilty without advising him that he had a right to demand counsel or have their advice, as guarantied to an accused by Rev. St. 1899, § 2560, was obviated by the appointment on the same day, and before any other step was required to be taken, of four well-known attorneys as his counsel, and by permitting him to withdraw his plea of guilty and enter a plea of not guilty.

2. In a prosecution for rape, error, if such, committed by the prosecuting attorney in offering the record of a former plea of guilty in evidence, was cured by the action of the court in refusing to admit the same, rebuking counsel for alluding thereto, and advising the jury that the plea was withdrawn without prejudice, and that defendant was in doubt when he made it.

3. Carnal knowledge of a female child under the age of 14 years, whether accomplished with or without force, and with or without consent of the prosecutrix, is rape.

4. In a prosecution for rape, where the evidence overwhelmingly established that defendant deliberately premeditated and carried out the forcible ravishment of a young girl in a brutal and inhuman manner, remarks of the prosecuting attorney to the jury, referring to defendant as a "brute," will not of themselves operate to work a reversal of a conviction.

5. In a prosecution for rape, evidence considered, and held sufficient to sustain a conviction.

Appeal from Circuit Court, Miller County; James E. Hazell, Judge.

Otis Allen was convicted of rape, and appeals. Affirmed.

W. S. Pope, L. N. Musser, and John W. Moore, for appellant. Edward C. Crow, Atty. Gen., for the State.

GANTT, P. J.

At the September, 1900, term of the circuit court of Miller county, the defendant was indicted for rape. The indictment contains two counts—one the ordinary form for rape upon a woman, and the other charges a rape upon the same female, alleging that she was a female child under the age of 14 years. The record discloses that the defendant, being under arrest, was brought into open court on the 18th day of September, and, it being demanded of him how he would acquit himself of the charges in said indictment preferred against him, for plea thereto said he was guilty as therein charged. Afterwards, on the same day, the record recites, "The defendant herein being a poor man, and unable to procure counsel for himself, the court appoints four attorneys (naming them) as counsel for defendant." On the same day the defendant, in his own proper person, and by his said counsel, by leave of the court, withdrew his plea of guilty, and entered a plea of not guilty, to the indictment. On the next day a jury was duly impaneled, and the evidence began. On the 21st day of September, 1900, the jury returned a verdict of guilty, and assessed defendant's punishment at a term in the penitentiary for 99 years. From the sentence on this verdict, the defendant prosecutes this appeal.

The evidence tends to prove that at the time of the commission of the alleged offense the defendant, a negro boy, was between 18 and 19 years of age. On the 14th day of September, 1900, there was a picnic at the town of Iberia, in Miller county. It began on Friday. On that evening there was a large concourse of people on the grounds. Among others at the picnic were two girls— the prosecuting witness, who was 13 years old the previous February, and her niece, who was about 15, and somewhat larger. They were at the picnic from sundown until 9 or 10 o'clock that night. The prosecutrix lived about one-fourth of a mile from the picnic grounds. She and her niece started home with Mr. Benage and his wife. After they left them, they started across a field to the home of the prosecutrix, distant about an eighth of a mile. As the two young girls walked across this field, side by side, they were suddenly seized from the rear. Ollie, the elder, broke loose and ran; but her assailant held Myrtle, the prosecutrix, and choked her, and picked her up and carried her about 100 yards, and then she lost consciousness. She identified the defendant as the negro who followed them, and who took hold of her. When she recovered consciousness she was in great pain; says she "hurt all over." She found herself on the ground, and the defendant by her, with his pants open in front, but she could not remember what else was done by defendant. Ollie, on breaking loose from defendant, ran immediately to her grandfather's—the father of the prosecutrix—and gave the alarm. She testified that when defendant came up to them he said "he wanted our company awhile." When she reached home her grandfather was in bed, and she told him a negro had grabbed Myrtle and run off with her. He jumped up and ran by Mrs. Gardner's, and aroused them. Mrs. Gardner and the father heard Myrtle groaning, and some one running, and went to her. When her father reached her, she exclaimed, "Oh, Pa, why didn't you come sooner? That negro was choking me to death." She was lying on the plowed ground. Her clothing was very dirty, and her dress ruined. There was every evidence of a struggle on the ground. Mrs. Gardner testified that the girl's underclothing was torn off of her, and terribly soiled and bloody; her privates lacerated and bleeding. She was in a State of collapse when she reached her. They took her to her father's house at once, and sent for a physician. Her neck was scratched and bruised. The physician testified that when he reached her she was cold and pale; her pulse was weak and fast; respiration irregular. She was prostrated. On examination of her privates, he found a laceration of the hymen at the lower border. This had been recently done, as there was hemorrhage still oozing out of the torn hymen when he examined her. There were indications of penetration. G. B. Johnson testified to a conversation with defendant, in which the defendant said he and another negro made it up that they wanted "to try a project." He "made a run when they got pretty close to the girls," but his partner dropped back, and he didn't see him any more. He said, "I heard since he made a failure, but I didn't." Johnson said to him, "You went through with your intentions?" "Well, yes." Asked if the girl fought any, he said, "Yes; she kicked and scratched around right smart." Asked if he choked her, he said: "I didn't recollect. I don't think I hurt her. Of course, I tried to keep her from hallooing." He said a scratch on his chin was done by her. Mr. Musser, a member of the bar, heard this statement. After Mr. Musser told him that, "if the girl swears to what they say she will, your neck will be the penalty," he said he "didn't do anything." On cross-examination this witness stated that, toward the last of his statement, defendant said he didn't hold her down very long. He said he "scuffled around with her awhile, and just got up and walked off." Everett Brumley testified to a conversation of defendant with Jap Cooper, in which defendant said he and his brother were drinking some lemonade at the picnic, and Walter Lollis, another negro, came and called him aside, and said, "Don't you want to have some sport to-night?" and defendant answered, "Any old thing." He then said: "We started just about the time those girls were ready to start home, and we followed them down to where I took hold of them;" and then he said, "I never seen no more of the other darkey. He was gone." Jap says, "You had been watching those girls, hadn't you, that evening?" "Yes," he said, "I had." Witness said to him, "You did what you intended to do when you started down there?" and he answered, "I did." The prosecuting attorney then called the clerk of the court, and had him sworn. After this witness was sworn, the prosecuting attorney stated to the court, "We desire to introduce the record of this plea of guilty...