State v. Armstrong

• Decision Date: 04 February 1902
• Parties: STATE v. ARMSTRONG.
• Court: Missouri Supreme Court

66 S.W. 961

167 Mo. 257

STATE v. ARMSTRONG.

Supreme Court of Missouri, Division No. 2.

February 4, 1902.

RAPE — GRAND AND PETIT JURY — INDICTMENT — EVIDENCE — CONFESSIONS — ADMISSIBILITY — INSTRUCTIONS — REMARKS OF COUNSEL.

1. An indictment for rape, averring that defendant did "in and upon T. unlawfully, violently, and feloniously make an assault, and her, the said T. then and there unlawfully, forcibly, and against her will did ravish," sufficiently charges that T. is of the female sex.

2. An objection that an indictment, indorsed "John L. Clark, Foreman of the Grand Jury," was not indorsed by the duly appointed foreman, was untenable, though in the transcript sent on change of venue the typewriter made the record state that the "court appoints John L. Calrk as foreman," where the full entry of the impaneling of the grand jury showed that John L. Clark was duly summoned and sworn, and it appeared that no such person as "Calrk" was a member of the panel, and the record recited that the indictment was "by the court examined and found to be indorsed `A true bill' by the foreman, John L. Clark."

3. An objection that the grand juror "Charles Hallm," as his name appeared in the transcript on change of venue, was not impaneled, charged, and sworn, was untenable, where the record showed that Charles Hall was duly summoned, impaneled, charged, and sworn, and that no such person as "Charles Hallm" was ever a member.

4. It was not necessary to swear the jury to try the case before placing them in charge of a sworn officer, where they were duly sworn the following day, and where no pretense was made that they were guilty of the slightest impropriety, and there was no separation of the jury at any time.

5. Under Rev. St. 1899, § 2629, providing that, when the argument is concluded, the jury "may retire under the charge of an officer, who, in case of a felony, shall be sworn to keep them together," etc., the special oath need not be administered to the officer at the time the jury is placed in his charge.

6. A 16 year old white girl was overtaken by a young negro, who demanded a dollar from her. She said she would give him everything she had if he would leave her alone. She testified that he dragged her from the buggy, and struck her in the face, etc., and that she became unconscious. When she regained consciousness, she found her skirt down and her underclothing torn. Neighbors afterwards caught defendant, who was identified by the girl as her assailant. A doctor testified that he found the girl considerably bruised, the hymen absent, and menstruation present. The girl testified to a soreness never before experienced, but could not tell whether penetration occurred. The doctor examined defendant some two or three hours after the alleged outrage, but discovered no stains on his clothing or person. The parties who arrested defendant testified that he had on a fresh laundered shirt. His mother and father testified that he had not changed his shirt for several days. Alleged confessions of defendant were also admitted. Held, in a prosecution for rape, sufficient to go to the jury.

7. A requested instruction is properly refused, where covered by one already given of the court's own motion.

8. An instruction that "there was no direct evidence of penetration," and invoking the rule as to circumstantial evidence, was properly refused, where two officers testified to confessions made by accused that he committed the crime.

9. The sheriff testified that, on taking him off the train at a certain point, the boy asked if a mob at the station were looking for him, and he replied he supposed so, but he did not know; that he told the boy he had better tell the truth; that he made no threats and held out no promises; that the boy thereupon confessed the crime. The boy denied making any confession, but testified that the officer drew a revolver on him and attempted to compel one, and that he did not know the mob was after him. Held, that the confession was admissible.

10. A deputy sheriff testified that he asked defendant if he knew he had had a pretty narrow escape, that the people were after him pretty hard, etc., and asked him, "Did you do it?" to which defendant first nodded his head, and then said, "Yes," and that he did not know why he did it. Held, that the confession was admissible.

11. Evidence of the finding of a hair ornament of the prosecutrix at the place of the alleged assault was admissible.

12. It was proper to permit witnesses to testify as to defendant's age, especially where it bore on his capacity to commit the crime.

13. Remarks of the prosecuting attorney, in arguing a rape case, that if the jury gave defendant a penitentiary sentence he could only be sent to the reform school on account of his age, was not ground for new trial, where brought to the attention of the court by affidavit; no exception being taken at the time.

Appeal from circuit court, Platte county; A. D. Burnes, Judge.

General Armstrong was convicted of rape, and appeals. Affirmed.

E. C. Hall, for appellant. The Attorney General and Jerry M. Jeffries, for the State.

GANTT, J.

At the September term, 1900, of the circuit court of Clinton county, the defendant, General Armstrong, was indicted for rape. He applied for and obtained a change of venue from Clinton county to Platte county. He was tried in the circuit court of Platte county at the December term, 1900, and convicted, and from that conviction and his sentence thereon he appeals.

The indictment is in these words: "State of Missouri, County of Clinton — ss. In the Circuit Court, September Term, 1900. The grand jurors for the state of Missouri, summoned from the body of Clinton county, charged, and sworn, upon their oaths present that one General Armstrong, late of the county aforesaid, on the 12th day of July, 1900, at the county of Clinton, state aforesaid, did in and upon Ivy B. Turney unlawfully, violently, and feloniously make an assault, and her, the said Ivy B. Turney, then and there unlawfully, forcibly, and against her will feloniously did ravish and carnally know, against the peace and dignity of the state. Thomas W. Walker, Prosecuting Attorney. A true bill. John L. Clark, Foreman of the Grand Jury." He was duly arraigned and entered his plea of not guilty.

The evidence was in substance the following: Ivy B. Turney, a young white girl of the age of 16 years, lived at the village of Turney, in Clinton county, Mo., on the 12th day of July, 1900, and had lived there since she was 8 years old, and gone to school. She had engaged in delivering baking powders on that day to different families in the neighborhood of Perrin, another village in said county. She had a buggy and horse, and went alone. She started about 9 o'clock in the morning of July 12, 1900, from Perrin, to deliver the baking powders. She had stopped at the homes of several families. After leaving Mrs. Dunn's, and while driving along on the public road to the residence of Mrs. Carey to make another delivery of goods, she testified she saw the defendant, a negro boy, riding a white horse, herding some cows along the road. Between Mrs. Dunn's and Mrs. Carey's there was a small ravine, out of the sight of each of these houses. After leaving Mrs. Dunn's, she looked back, and saw the defendant was following her in a gallop, whereupon she drove rapidly to get away from him, but he overtook her, caught the lines, and pulled her horse to the right side of the road, and said to her "Give me a dollar." She told him she would give him everything she had if he would only leave her alone. At this, she says, he became very angry, and gritted his teeth, and caught her, and dragged her from the buggy, and struck her in the face. She resisted him with all her strength, and tried to scream; but he caught her by the throat and she became unconscious. When she regained consciousness, she found her skirt was down, her underclothes torn and rumpled, and the napkin she wore, on account of her menstruation at the time, removed. She saw him going down the road. She drove first to Carey's, and stopped about five minutes, and then she drove at once to Mrs. Boone's, about one-half mile, where she told the story of her frightful experience. Mr. Boone gathered two or three neighbors, and they immediately went to the house of defendant's parents, took defendant in charge, and carried him to Mr. Boone's, where the prosecutrix was in bed, and she identified him positively as her assailant. In the meantime Dr. Sturgis, who resided in Perrin, was called in, and he testified that he found prosecutrix suffering from extreme nervousness; her pulse about 90. He found her right hip and right side considerably bruised, and her right arm partially paralyzed. He made a digital examination, and found the hymen absent and menstruation present. He treated her seven or eight days before she was able to go to her parents at Turney. Prosecutrix testified to a soreness in her private parts, which she had never before experienced, but was unable to state, from her unconscious condition, whether penetration had occurred. Examination was made by Dr. Sturgis of the defendant's person, but he discovered no stains upon his clothing or person at that time, some two or three hours after the alleged outrage. The witnesses who arrested defendant at his father's testified he had on a freshly laundered shirt. On the other hand, his mother and father testified he had not changed his shirt since Sunday, and this was on Thursday. The weather was very warm, and the roads dry and dusty at the time. The defendant was taken to Plattsburg, the county seat, and, as the indignation was very great, the sheriff, Wiser, took the prisoner to Kansas City for safe-keeping and to protect him from violence. On the 14th of July, the marshal of Plattsburg, Mr. Moody, and Joseph Shoemaker were returning from Kansas City with the prisoner, taking him to the Plattsburg jail. It seems ...