State v. Bowman

• Decision Date: 12 February 1901
• Citation: 62 S.W. 996,161 Mo. 88
• Parties: STATE v. BOWMAN.
• Court: Missouri Supreme Court

62 S.W. 996

161 Mo. 88

STATE v. BOWMAN.

Supreme Court of Missouri, Division No. 2.

February 12, 1901.

RAPE—SUFFICIENCY OF EVIDENCE—CONTINUANCE—NEW TRIAL FOR NEWLY-DISCOVERED EVIDENCE — NECESSITY OF AFFIDAVIT TO SUPPORT MOTION.

1. Defendant took his cousin, the prosecutrix, who was 16 years old, and her sister, in a buggy, one afternoon, to a town where relatives resided, for a visit. While there the girls concluded to remain over night, one staying with one aunt, and another with another. After supper defendant drove to the place where prosecutrix was, and said that her sister had decided to return home. Prosecutrix got in the buggy, and defendant drove out of town without her sister, notwithstanding prosecutrix's remonstrances. The latter testified that defendant forcibly had carnal connection with her three times before they arrived home, although she resisted and "hollered" each time to her utmost. On reaching the town where prosecutrix lived, about 11 o'clock, defendant left her about two blocks from home. Her cries that she would make known defendant's conduct were heard by her mother, and, on arriving at the house, prosecutrix's clothing was found to be badly torn. When asked why she left her sister, she said defendant forced her to do so. Defendant hired a livery team after leaving prosecutrix to go to an adjoining town, and told the driver that he was going away because he was in trouble with prosecutrix. He testified that he had connection with prosecutrix, but declared that it was with her consent. Defendant's mother and brother subsequently attempted to settle with prosecutrix by a cash payment. Held, that the evidence was sufficient to sustain a conviction of rape.

2. There was no error in refusing a continuance on account of the illness of a witness, where defendant knows that the witness was too sick to attend court, and that probably she would never be able to do so, and where there was ample time to have taken her deposition, if it was desired.

3. There is no error in refusing a new trial on the ground of newly-discovered evidence, where the motion is not supported by the affidavit of the supposed witness, and entirely failed to meet the requirements of the law.

Appeal from circuit court, Atchison county; Gallatin Craig, Judge.

James Bowman was convicted of rape, and he appeals. Affirmed.

L. D. Ramsay, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, Asst. Atty. Gen., for the State.

GANTT, J.

The defendant was indicted at the May term, 1900, of the Atchison circuit court, for rape. He was duly arraigned, and his trial had at the September term, 1900. He was convicted, and sentenced to the penitentiary. He appeals.

The evidence, with little contradiction, established these facts: Philura Ray, a young woman, 16 years old, lived at Fairfax, in Atchison county, in this state, with her parents, L. D. Ray and Mrs. Sarah E. Ray. Mrs. Ray had two half-sisters, Mrs. Florence Bell and Mrs. Nancy Buster, who lived at Tarkio, about eight miles distant from Fairfax. The defendant, James Bowman, was and is a cousin of Mrs. Ray and her said sisters. Although thus closely related, defendant was not personally known to these ladies prior to December, 1899, some three or four months before the commission of the crime of which he was convicted. In December, 1899, defendant, with his mother, visited his aunt, Mrs. Ray, and her family, and remained one day. He saw them no more until April 1, 1900, when he again came to visit them. On the 3d day of April 1900, after a disagreement with a Mr. Collins, for whom he was working, he came to Ray's house, and said he desired to leave some clothing there until he could settle with Collins. He then made arrangements to work on a drainage ditch with Ray, and was to go to Skidmore, about 20 miles distant, for a team. He remained at Ray's until afternoon, when he invited Mrs. Ray to go with him in a buggy to visit her sisters and his cousins, Mrs. Bell and Mrs. Buster. Mrs. Ray assisted in the support of her husband's family by washing by the day, and she excused herself on the ground that she had a washing on hand that day, and couldn't go with him. He then asked her, "Why can't the girl go?" She said, "No; one of the girls couldn't go unless they both went." Mrs. Ray had two daughters, Philura and Beada. The latter was then about 20 years old. He offered then to take both, and their mother consented. He left Fairfax with the two girls about 2:30 on the afternoon of April 3d, and reached Tarkio about 4 p. m. of that day. After reaching Tarkio, they drove first to Mrs. Buster's, but found no one at home. They then went to Mrs. Bell's. They made a short visit there, and then defendant and the prosecutrix drove over to Mrs. Graham's, for whom Mrs. Bell's daughter was working, and brought her home, and they spent the time until about 5 o'clock, and took Miss Bell back to Graham's. The defendant and the two Ray girls then drove to Mrs. Buster's. After a short visit there they drove back to Mrs. Bell's, and, as it was getting late, the girls concluded to remain overnight,—one with their aunt, Mrs. Buster; the other, Philura, with Mrs. Bell. Philura was left at Mrs. Bell's, and defendant took Beada to Mrs. Buster's. Later, and after supper that evening, defendant drove to Mrs. Bell's, and called to the prosecutrix, and said her sister had concluded to go home, and they were going. ...