State v. Bigley

• Decision Date: 09 December 1922
• Docket Number: No. 23786.,23786.
• Citation: 247 S.W. 169
• Parties: STATE v. BIGLEY
• Court: Missouri Supreme Court

247 S.W. 169

STATE v. BIGLEY

No. 23786.

Supreme Court of Missouri, Division No. 2.

December 9, 1922.

Appeal from Circuit Court, Atchison County; John M. Dawson, Judge.

Charles Bigley was convicted of rape, and he appeals. Affirmed.

Lee Mullins and L. D. Ramsay, both of Rockport, for appellant.

Jesse W. Barrett, Atty. Gen., and Henry Caruthers, of Jefferson City, for the State.

Statement.

REEVES, C.

Defendant was convicted of rape, and his punishment assessed at 15 years in the penitentiary. The information charged that the defendant, "on or about the 9th day of March, 1922, at the county of Atchison, in the state of Missouri, in and upon one Mildred Beck, unlawfully, violently, and feloniously did make an assault, and her, the said Mildred Beck, then and there unlawfully, forcibly, and against her will feloniously did ravish and carnally know."

The prosecutrix, a girl 16 yearn of age, resided with her widowed mother and aged grandfather on a farm about five miles southeast of Fairfax, in Atchison county. Appellant, who was 26 years old, lived in the same county. Appellant and prosecutrix had met a few months before the alleged crime, and had been in each others company on the previous Sunday. On the evening of the alleged assault, at about 7:30, appellant, driving a Ford touring car, in company with one Dode Staten, came to the home of the prosecutrix without previous engagement, according to her testimony, but by an arrangement, according to his. Prosecutrix was alone with her brother and grandfather, her mother having gone away for the evening. She had arranged to go to Fairfax with her brother for choir practice. When appellant invited her to take an automobile ride, she so informed him, but, upon his agreement to take her to choir practice at Fairfax, prosecutrix agreed to accompany him in his automobile. This she did, and, according to her testimony, they had not proceeded far on the road until the car was stopped in the roadway. Staten left the car, and, the side curtains being up, appellant shoved the prosecutrix over the front seat into the rear seat, where he forcibly, and against her will, and over her utmost resistance, ravished her. Shortly thereafter Staten returned, and in like manner committed an assault. The three then proceeded to Tarkio, where they met one William Gowdy, and, after some delay, went out to the country to the home of Gowdy, where the four remained all night. During the night prosecutrix was assaulted in turn by appellant, Staten, and Gowdy. On the next morning all of the parties returned to Tarkio, where appellant left prosecutrix at the home of a relative. Prosecutrix telephoned for her mother, who came to Tarkio for her on the afternoon of the 10th. When her mother arrived at Tarkio she found prosecutrix on the street. She appeared scared, nervous, and as if she had been sick. She had dark rings under her eyes. "She looked scary and frightened, like she was scared nearly to death." Prosecutrix made no complaint to her mother about her mistreatment until the 23d of March. She then told her mother in the presence of the sheriff. The sheriff had been informed of the episode, and had come to the hone of her mother to investigate. Thereupon she told of her mistreatment, and gave the sickening and degrading details thereof.

On the same day she was examined by two Physicians, who testified that she had been abused. In answer to a question, one of the physicians said, "I am satisfied the child had been penetrated by something." Both the examining physicians said that the hymen was not only ruptured, but entirely destroyed. The bloomers worn by prosecutrix at the time of the alleged assault were torn at the crotch and the coat worn by her was torn. She said this was done when she was assaulted by appellant. There was blood on her underclothing, differing from that of her regular sickness. Prosecutrix feared to make a complaint to her mother because appellant had told her that she would be sent to the reform school if the facts became known.

Appellant, in his testimony, admitted that he was with prosecutrix, as stated by her, and that he and his companions had stayed with her in the Gowdy home on the night of the alleged assault. He denied that he was guilty of "ravishing her forcibly, against her will, and against her utmost resistance."

Staten and Gowdy were not called as witnesses. There was testimony tending to impeach the character of the prosecutrix, and also testimony tending to show that she was of good character. There was testimony that the reputation of the accused for truth and veracity, as well as general morality, was bad.

Appellant complains only of procedural errors, all of which will be noted and discussed in the course of the opinion.

Opinion.

1. His first complaint is that, the "defendant having taken the stand as a witness in his own behalf, the state introduced many witnesses to prove his bad character as to morals; this, of course, was proper for the sole purpose of affecting his credibility as a witness. And the court failed to instruct the jury that such evidence could not be used for any other purpose, the appellant not having put his character in issue." This complaint at the nondirection of the court was never made at the trial. No exception was noted in the bill of exceptions. Appellant's motion for a new trial contained no complaint against this alleged nondirection. It follows, therefore, that appellant did not preserve the point for our review. State v. Pinson (Mo. Sup.) 236 S. W. 354; State v. Conway, 241 Mo. 271, 145 S. W. 441; State v. Douglas, 258 Mo. 281, 167 S. W. 552; State v. Reich (Mo. Sup.) 239 S. W. 835. There may he a question as to the duty of the defendant to note an exception at the nondirection of the court on its failure to instruct on all questions of law arising the case, but there is no question as to the rule requiring appellant to complain in his motion for a new trial. He cannot complain here of errors to which he did not call the attention of the trial judge.

2. Appellant next complains that the court should have sustained his "demurrer to the evidence at the close of the state's testimony, and also erred in failing and refusing to give such instruction at the close of all the evidence in the case." It has been repeatedly held that, where the' defendant does not stand on his demurrer at the close of the state's case, but proceeds to put in his own evidence, he thereby waives his demurrer to the `state's evidence, and takes his chance of aiding the state's case. State v. Hembree (Mo. Sup.) 242 S. W. 911; State v. Ellis (Mo. Sup.) 234 S. W. 815; State v. Jackson, 283 Mo. 18, 222 S. W. 746; State v. Belknap (Mo. Sup.) 221 S. W. 39, loc. cit. 45; State v. Mann (Mo. Sup.) 217 S. W. 67.

The court properly overruled the demurrer at the close of all the evidence. Prosecutrix testified positively, directly, and unequivocally that on the date mentioned in the information appellant forcibly ravished her, and that he did so without her consent and_ over her utmost resistance. In support of her...