State v. Anderson

• Decision Date: 31 October 1853
• Parties: THE STATE. Respondent, v. ANDERSON, Appellant.
• Court: Missouri Supreme Court

19 Mo. 241

THE STATE. Respondent,

v.ANDERSON, Appellant.

Supreme Court of Missouri.

October Term, 1853.

1. The bad character of the parents of the prosecutrix is not admissible evidence in behalf of a party charged with rape.

2. At the trial of a negro upon an indictment for an attempt to ravish a white female, the jury is at liberty to find that the averments of the indictment as to color or race and sex are sustained, from seeing the parties in court, and proof that the defendant is a slave.

3. An indictment of a negro for an attempted rape is properly framed upon the first clause of the 31st section of the 2d article of the act concerning crimes and punishments, (R. C. 1845,) without reference to the 26th or 37th sections, which are only applicable to rapes and attempted rapes by white persons.

4. Neither a civil nor a criminal case will be reversed merely because the verdict was against the weight of evidence.

5. Jurors are the exclusive judges of the weight of testimony. They are not obliged to reject all the testimony of a witness who has testified falsely in one particular.

Appeal from St. Louis Criminal Court.

Anderson, a negro slave, was indicted for an attempted rape upon a white female. The indictment contained two counts. The second, upon which alone the defendant was convicted, was as follows: “And the grand jurors aforesaid, upon their oaths aforesaid, do further present, that John Anderson, a negro man slave, on, &c., at &c., in and upon one Rebecca Ann H., a white female, in the peace of the state, then and there being, violently and feloniously did make an assault, and her, the said Rebecca Ann did then and there attempt, forcibly and against her will, to ravish, and carnally know, against the peace and dignity of the state.”

At the trial, the prosecutrix was called as a witness for the State. Other witnesses were also called, and there was evidence tending to sustain the charge of an attempted rape. At the close of the testimony for the prosecution, it had been proved that the defendant was a slave, but no witness had testified that he was a negro man, or that the prosecutrix was a white female.

Two negroes were called as witnesses by the defendant. The State objected to the competency of these witnesses, on the ground that they were negroes, and one of them was a slave. The objection was overruled, and an exception taken. The defendant's counsel put to one of these witnesses the following questions, to which an objection was sustained: “Do you know what the girl's people did for a living?” “Do you know what the girl's mother did for a living?”

The following instructions, among others, were given by the court:

“If the jury believe, from seeing the witness, Rebecca, in court, upon the witness stand, that she is a white female, and from seeing the defendant in court, or from the testimony of his being a slave, that he is a negro, these facts are sufficient to support the allegation in the indictment in relation to the color, sex and race of the prosecuting witness and the defendant.”

“If the jury believe from the evidence, that the defendant is guilty of an attempt to commit a rape, as charged in the second count of the indictment, you cannot acquit the defendant, because you may believe the witness, Rebecca, is of bad character for virtue, or that she associated with negroes.”

“If the jury believe that the witness, Rebecca Ann, has testified falsely to any material matter in this cause. the jury, in such case, ought to reject the whole of her testimony and acquit the prisoner.”

Several instrutions were asked on behalf of the defendant, which were refused. The jury returned a verdict of “guilty” upon the second count of the indictment. The defendant moved for a new trial and in arrest of judgment. These motions being overruled, he was sentenced to be castrated, and now appeals to this court.

Lackland & Jamison and G. W. Cline, for appellant, among others, made the following points:

1. The question as to the competency of the negro testimony, introduced by the defendant, does not arise, as the State does not appeal. The testimony, however, was admissible. If the defendant was a negro, it is settled by the 22d section of act concerning witnesses (R. C. 1845). If he was a white man, still it was admissible in his favor, or else the operation of the statute is to abridge the rights and privileges of the white man. 2. The testimony as to the character of the parents of the prosecutrix should have been admitted. The manner in which she was educated, and the influences by which she was surrounded, were material upon the question of her character and credibility. Camp v. State, 3 Kelly, 420. 3. The averments in the indictment, that the prosecutrix was a white female, and the defendant a negro, were material and had to be proved. Nathan v. State, 8 Mo. 631. Grandison v. State, 2 Humph. 452. Elijah v. State, ib. The court erred in telling the jury they might find that the prosecutrix was a white female, from seeing her on the witness stand, and that the defendant was a negro, from seeing him in court, and proof that he was a slave. If this be law, then it would be proper in a larceny case to instruct the jury that they might find the material fact of value from seeing the article, or in a case of passing counterfeit money, that the money was counterfeit or genuine from seeing it in court. This is in effect telling the jury that they may find material facts from their own individual knowledge, without being subjected to cross-examination. Under the statute, the question before the jury was not merely one of color, but of race. Such questions are often of the greatest difficulty, requiring for their solution scientific skill. There are albinoes, mulattoes and quadroons, who excel Caucasians in whiteness of skin. Yet, before the jury could convict the defendant, it was necessary that they should find that he was a negro, and the prosecutrix a Caucasian. These facts they could only find upon proof. Dunbar v. Parks, 2 Tyler, 217. State v. Powell, 2 Halst. 244. 1 Starkie's Ev. 543. Clark v. Robinson, 5 B. Monroe, 55. Burrows v. Anderson, Cox, 203. Gilpin, 260. 2 Humph. 455. Ib. 452. McGuire v. State, 13 S. & M. 257. Slavery does not raise the legal presumption of black color, although the converse is true. Indians are held in slavery in many of the states of the Union. State v. Wagner, 1 Halst. 374, Deck v. Coleman, 1 Wash. 233. 2 Mo. 69-71. If there was any such presumption in any case, it would be overcome, in a criminal case, by the paramonnt presumption of innocence. 3 Starkie's Ev. 895.2 B. & Ald. 386. 4. The indictment is not sufficient. It is drawn upon the first subdivision of the 31st section of the second article of the act concerning crimes and punishments, as though this subdivision alone described an offense, whereas, it only sets forth facts making a compound offense of the one described in the latter clause of § 26 and § 37 of the same article, and prescribes a different punishment therefor. The offense which should have been charged was, an assault with intent to commit a rape, as described in § 37, by forcibly ravishing, as mentioned in the latter clause of § 26, under the additional circumstances of the prosecutrtx being a white female, and the defendant being a negro or mulatto. A general charge of an attempt to commit a rape no more describes an offense, than would a general charge of violating the statute which is not sufficient. Kliffield v. State, 4...