State v. Beck

Decision Date04 June 1963
Docket NumberNo. 49665,No. 1,49665,1
Citation368 S.W.2d 490
PartiesSTATE of Missouri, Respondent, v. Jerry Rodger BECK, Appellant
CourtMissouri Supreme Court

Wm. J. Hill, Kansas City, for appellant.

Thomas F. Eagleton, Atty. Gen., John H. Denman, Asst. Atty. Gen., Jefferson City, for respondent.

HOLMAN, Commissioner.

Defendant, Jerry Rodger Beck, was found guilty of forcible rape and his punishment fixed by the jury at five years' imprisonment in the penitentiary. See Section 559.260 RSMo 1959, V.A.M.S. He has appealed from the ensuing judgment.

The sole point briefed by defendant upon this appeal is that the evidence is insufficient to support the conviction and hence the trial court should have sustained his motion for a judgment of acquittal filed at the close of all the evidence. He specifically contends that there was no substantial evidence of actual or constructive force at the time of the act of intercourse and that the evidence discloses that prosecutrix did not make the utmost resistance of which she was capable as required by law.

As will hereinafter appear, it is conceded that the act of intercourse was accomplished without the use of actual physical force on the part of defendant (since his identity is not questioned here we will assume that defendant is the man involved in this occurrence) and that prosecutrix did not offer any substantial physical resistence. It is the theory of the State that the utmost resistance doctrine does not apply in this case because prosecutrix submitted to defendant's demands because of fear which resulted from threats of great bodily harm to her and her baby.

The principal evidence relating to the issues presented upon this appeal is contained in the testimony of prosecutrix. She testified that at the time in question, April 12, 1962, she was 21 years of age, married, and the mother of two small children, one three years of age and the other four months; that she resided with her husband on East 152nd Street in Grandview, Missouri, in a housing development area where the houses were rather close together; that at 2 p. m. on April 12, defendant knocked at her door and asked the directions to Highway 71, and that she gave him the directions and he returned to his car; that a little later defendant again knocked on the door and asked to use the telephone; that she permitted him to enter her home and use the telephone which was located in the kitchen and then accompanied him to the front door; that she then stated to defendant that she was going to turn down the volume on the television set which was located near the door; that as she worked with the television set defendant approached her from behind; he 'grabbed me around--around my busts, and he put a knife to my throat' and said, 'Well, I have a better idea'; that she told defendant she wasn't feeling good and had to sit down and defendant permitted her to do so; that both of her children were then asleep in separate bedrooms; that after she sat down she asked defendant what he wanted, and he said, 'You know what I want'; that she then attempted to dissuade him by offering to let him take their car or their money or anything in the house if he would get out and leave her alone, and he replied, 'No, you know what I want'; that at that point her baby began to cry and defendant told her to go get the baby, which she did; that she then told defendant the baby was hungry and she had to fix a bottle; that she laid the baby on the couch in the living room and defendant went with her to the kitchen while she started heating a bottle of milk; that she knew the baby was not hungry but she was stalling the defendant hoping that someone would come to the house or that she could get help; that when they returned to the living room defendant took hold of her right wrist and pulled her up from the divan and as he motioned toward the bedroom he said, 'Come on, let's go'; that she refused to go and defendant then pointed a knife at the baby and said, 'You wouldn't want anything to happen to her, would you'; that she was then in fear for the life of her child; that he again told her to go to the bedroom, and 'I asked him if he would put the knife away, and he says, 'Why do you want me to put the knife away?' and I said, 'I don't like knives, it scares me.' And he says, 'I'll lay the knife on the television, but you go on in the bedroom.' room.' And I just stood there in front of him, and he motioned for me to go on around in front of him; and I did, and as I went by the television he laid the knife on it.' She stated that she was in fear at that time and had been in fear since he had first exhibited the knife. 'Q. You were in fear from that moment until the time--or in fact all the time he was there, is that right? A. I was afraid from the time he pulled the knife until the time he left. Q. Were you in fear for anyone other than your own person? A. Yes, I actually believed that he would have killed all of us.'

The prosecutrix testified further that after they entered the bedroom defendant directed her to take off all her clothes, which she did. She then described what occurred in the bedroom in the following manner: 'Q. Now you state that this man who entered your home forced you into the bedroom and forced you to disrobe, and you were sitting on the bed; what happened then, please? A. He told me to lay back on the bed. Q. And did you? A. Yes. Q. And then what happened, please? A. Well, he told me to scoot up, and not to look. Q. And what happened then? A. Well, he unzipped his pants and laid down. Q. And what did he do then, please? A. He told me to put it in. Q. And did you? A. Yes, I did. Q. And by that do you mean that you inserted his private parts into yours? A. Yes, sir. Q. And did he thereafter complete the act of intercourse with you? A. Yes. Q. And what did he do then? A. He got up, zipped his pants up, and he said, 'That wasn't so bad, was it?' Q. And at the time this occurred were you still in fear? A. Yes, I was. Q. For anyone's life but your own? A. Yes, my two children. Q. All right, what happened then, did he leave, or did you leave, or---- A. I ran to the front door and held the door open and stood behind it, and he walked down the hall and he came to the front door and he turned around and he says, 'Oh, fingerprints,' and he went to the kitchen and I heard him wiping the fingerprints off of the phone. Q. And did he thereafter leave? A. He came in and he said, as he got to the door, 'Don't call the police' he says, 'or I'll come back and kill you, because I know where you live.' Q. What did you do then? A. When he went out the door I slammed the door and ran to the bathroom. Q. And did what? A. I tried to take a douche. Q. And then what did you do, please? A. I ran next door to the neighbor's house. Q. And how were you dressed at that time? A. I had on pants. Q. Nothing else but--what type, toreador pants? A. Yes, toreador pants.'

Prosecutrix' neighbor, Mrs. DuBois, testified that on the afternoon in question prosecutrix knocked on her door and she let her in; that she was wearing only a pair of toreador pants and that prosecutrix fell to the floor crying and screaming and told her that she had been raped; that she suggested that they call...

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  • State v. Rusk
    • United States
    • Maryland Court of Appeals
    • January 13, 1981
    ...71, 260 N.E.2d 386 (1970); Carroll v. State, 263 Ind. 86, 324 N.E.2d 809 (1975); Fields v. State, 293 So.2d 430 (Miss.1974); State v. Beck, 368 S.W.2d 490 (Mo.1963); Cascio v. State, 147 Neb. 1075, 25 N.W.2d 897 (1947); State v. Burns, 287 N.C. 102, 214 S.E.2d 56, cert. denied, 423 U.S. 933......
  • Winegan v. State
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    ...us in Walter v. State, supra and Rice v. State, supra. It is expressly supported by several cases throughout the country. State v. Beck, 368 S.W.2d 490 (Mo.S.Ct.1963); People v. Hinton, 166 Cal.App.2d 743, 333 P.2d 822 (1959); Johnson v. State, 223 Miss. 56, 76 So.2d 841 (1955); Longoria v.......
  • State v. Adams
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    • June 8, 1964
    ...and threats of violence may supply or serve in lieu of the requirement of resistance. State v. Wynn, Mo., 357 S.W.2d 936, 939; State v. Beck, Mo., 368 S.W.2d 490; State v. Schuster, Mo., 282 S.W.2d 553, 556; State v. Catron, 317 Mo. 894, 296 S.W. 141, 143. Here, not only did the defendant o......
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    • February 12, 1968
    ...where that hypothesis in a given instruction was not only not supported by the evidence but directly contrary thereto. In State v. Beck, Mo., 368 S.W.2d 490, 493(3), it was said, 'This court stated long ago that 'the 'utmost resistance' doctrine does not apply where the woman is put in fear......
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