State v. Conrad

• Decision Date: 02 March 1929
• Docket Number: No. 29093.,29093.
• Citation: 14 S.W.2d 608
• Parties: THE STATE v. WILLIAM CONRAD, Appellant.
• Court: Missouri Supreme Court

14 S.W.2d 608

THE STATE v. WILLIAM CONRAD, Appellant.

No. 29093.

Supreme Court of Missouri, Division Two.

March 2, 1929.

Appeal from Saline Circuit Court. — Hon. Robert M. Reynolds, Judge.

AFFIRMED.

Gilbert Lamb for appellant.

(1) The court erred in overruling defendant's motion to quash the information, because the crime of rape is not prohibited, nor made an offense by Sec. 3247, R.S. 1919, and the information did not charge the crime of rape as defined by the common law. Laws 1921, p. 284a; 16 C.J. 64; 12 Cyc. 139 (59), 141 (d); Commonwealth v. Marshall, 22 Am. Dec. 377; Todd v. Simms, 158 U.S. 278; People v. Phyfe, 32 N.E. 978; State v. McMahon, 234 Mo. 614; 22 R.C.L. 1173; People v. Fabian, 85 N.E. 672; Ex parte Watson, 72 S.E. 1049; State v. Woodward, 53 Pac. 278; State v. Smith, 106 N.W. 187; Judge v. Powers, 136 N.W. 315. (2) The court erred in permitting the alleged conversation between Fannie Hedrick and her mother as to Conrad having assaulted Fannie Hedrick, because made out of the presence of the defendant, was too remote from the time of the alleged offense and was not part of the res gestae. State v. Kelleher, 201 Mo. 631; State v. Widick, 292 S.W. (Mo.) 53; Frye v. Railroad, 200 Mo. 377. (3) The court erred in overruling the demurrer of defendant, at the close of all the evidence, because there was no substantial evidence on which to base a verdict. (4) The court erred in not instructing the jury as to defendant's explanation of his alleged flight. State v. Mills, 272 Mo. 534. (5) The court erred in permitting the prosecuting attorney to argue the question of flight to the jury when no instruction of law had been given by the court to guide the jury on that issue.

Stratton Shartel, Attorney-General, and Claude E. Curtis, Special Assistant Attorney-General, for respondent.

(1) The information properly charges the crime of statutory rape. State v. Borchert, 279 S.W. 72; State v. Turner, 274 S.W. 35; State v. Lorton, 274 S.W. 383; State v. Hutchens, 271 S.W. 525; State v. Hurlbut, 285 S.W. 469; Sec. 3247, R.S. 1919, as amended, Laws 1921, p. 284a. (2) The evidence was amply sufficient upon which to base the verdict of the jury. State v. Murrell, 289 S.W. 859; State v. Gruber, 285 S.W. 426; State v. Hudson, 289 S.W. 920; State v. Hurlbut, 285 S.W. 469; State v. Gilreath, 267 S.W. 880; State v. Cox, 263 S.W. 215. (3) The trial court committed no error by admitting in evidence the testimony of the mother of the prosecutrix to the effect that shortly after the alleged crime of rape the prosecutrix made complaint to the mother charging that the defendant had injured her. It is proper for the State to prove that prosecutrix in a rape case made complaint. The statement admitted did not go into details. State v. Parsons, 285 S.W. 412; State v. Gilreath, 267 S.W. 881; State v. Lawhorn, 250 Mo. 293. (4) The court committed no error by failing to instruct the jury on the question of flight. This was a collateral matter and in the absence of a request from the defendant, no error was committed in failing to give such instruction. State v. McCullough, 289 S.W. 811; State v. English, 274 S.W. 474; State v. Silvey, 296 S.W. 128; State v. Sublett, 191 Mo. 163; State v. London, 295 S.W. 547; State v. Hubbard, 295 S.W. 788; State v. Murray, 292 S.W. 434; State v. Lackey, 230 Mo. 707; State v. Marshall, 297 S.W. 63. (5) It was not error for the prosecuting attorney to argue to the jury the facts relative to the defendant's flight; it is always permissible for the State's attorney to argue the facts in the case. State v. Carey, 278 S.W. 722; State v. Lassieur, 242 S.W. 900; State v. McBride, 231 S.W. 592. The matter of the argument of a prosecuting attorney is largely in the discretion of the trial court. State v. Marshall, 297 S.W. 63. In order for a case to be reversed because of improper remarks made by the prosecutor it must be shown that the argument was prejudicial to the defendant and that it probably had something to do with bringing about the verdict of the jury. State v. Williams, 274 S.W. 427; State v. Baker, 246 Mo. 357; State v. Hewitt, 259 S.W. 780.

DAVIS, C.

On September 23, 1926, the Prosecuting Attorney of Chariton County filed an information charging that defendant, on September 15, 1926, committed rape on a female child of the age of twelve years. On change of venue to Saline County, a jury found defendant guilty, and assessed his punishment at twenty-five years in the penitentiary. The cause is here upon defendant's appeal.

The facts developed by the State warrant the finding that, on September 15, 1926, the defendant and Morris Mason arrived at the home of Fannie Hedrick, a female child of the age of twelve years, about two o'clock in the afternoon. The home was situated about four and a half miles northeast of Keytesville. There Fannie resided with her father, mother, brothers and sisters. Her father was employed by defendant in mining coal and was absent from home at work. Her mother, however, was present. Defendant and Mason brought with them a half-gallon jug of whiskey. Permission being given, defendant and Mason drank whiskey in the home. They attempted to persuade Fannie and her mother to take a drink, but Fannie would have none of it, and her mother pretended to sip it only. Mrs. Hedrick tried to persuade the men to leave, but they refused. Subsequently, defendant unsuccessfully importuned Mrs. Hedrick to permit Fannie to go with him to his orchard to gather apples. About that time Fannie's nine-year-old brother returned from school, whereupon Mrs. Hedrick assented to the children going to the orchard for apples. The defendant and Mason left the Hedrick home about three-thirty P.M., going eastwardly. The children also left the home shortly thereafter, going westwardly along the road. About a quarter of a mile from home, on arriving at a bridge, the two men met the children. The defendant took Fannie by the hand and Mason her brother. Proceeding across the bridge thus, Mason took her brother into the woods, and defendant led Fannie over a fence, across a meadow, over a second fence, into the orchard of one Minor, over a third fence and into a shallow ravine, where he threw her down. She pulled away and started to run, but he caught her and threw her down again. She holloed for her father and mother, whereupon defendant placed his hand over her mouth. Defendant then undid Fannie's clothes and accomplished his purpose by having sexual intercourse with her. She then returned home, which was about a mile and a quarter distant, arriving about four o'clock P.M. She was crying as she entered, and, upon being asked the cause by her mother, she said, "Oh, Bill Conrad hurt me, Mamma." Her father had in the interim returned home and upon an examination blood was found on her stomach and legs. Her father wiped off some of the blood and immediately took her to a doctor at Keytesville. The doctor found her excited and nervous. He stated that she had had sexual intercourse and that the parts were swollen and bruised.

Defendant's evidence tended to show that he visited the Hedrick home on the day at the hours related; that he walked down the road with Mason and the children, and, becoming ill, he laid down in the orchard, while Mason and the children went on. Later he heard a scream in the orchard and, in ferreting out the cause, found Mason on top of Fannie. His evidence tended to deny categorically sexual intercourse with the child. Other pertinent facts will appear in the opinion.

Section 3247, page 284a, Laws 1921, upon which the information is based, reads: "Every person who shall be convicted of rape, either by carnally and unlawfully knowing any female child under the age of sixteen years, or by forcibly ravishing any woman of the age of sixteen years or upward, shall suffer death, or be punished by imprisonment in the penitentiary for not less than two years, in the discretion of the jury."

The information filed recites: "John C. Collett, prosecuting attorney within and for the County of Chariton, in the State of Missouri, upon his official oath informs the court that at the County of Chariton and State of Missouri and on or about the 15th day of September, 1926, the defendants, Morris Mason and William Conrad, did then and there in and upon one Fannie Hedrick, a female child under the age of sixteen years, to-wit, of the age of twelve years, unlawfully and feloniously did make an assault, and her the said Fannie Hedrick then and there unlawfully and feloniously did carnally know and abuse, contrary to the form of the statute in such cases and against the peace and dignity of the State."

I. The initial alleged error involves the information. It arises out of the context of the statute on which the information is grounded. It is the position of defendant that the statutes do not define or prohibit rape, because Section 3247, Information. supra, prescribes after conviction the punishment, without defining or interdicting the acts mentioned. Consequently, it is said, the relevant law is the common law, under which the State must proceed, and, as a necessary element of rape, that of non-consent, is omitted from the information, it should be quashed, for at common law non-consent must be alleged and proved, irrespective of the age of the female. [22 R.C.L. 1173.] To recapitulate, defendant avers that the statute does not prohibit or interdict any act, or render any act unlawful, or declare guilty any person who commits the proscribed acts.

An examination of Section 3247, supra, demonstrates that it defines and separates the crime of rape into two classifications, that is, either by carnally and unlawfully knowing any female child under the age of sixteen years, or by forcibly ravishing any woman of the age of sixteen years or upwards. While the statute fixes, after conviction, the punishment for the crime, it also defines and interdicts the acts that constitute rape. Carnal...