State v. Cottengim

• Decision Date: 18 December 1928
• Docket Number: No. 29180.,29180.
• Citation: 12 S.W.2d 53
• Parties: STATE v. COTTENGIM.
• Court: Missouri Supreme Court

12 S.W.2d 53

STATE v. COTTENGIM.

No. 29180.

Supreme Court of Missouri, Division No. 2.

December 18, 1928.

Appeal from Circuit Court, Webster County; C. H. Skinker, Judge.

Vincent Cottengim was convicted of rape, and he appeals. Affirmed.

Stratton Shartel, Atty. Gen., and Claude E. Curtis, Sp. Asst. Atty. Gen., for the State.

HIGBEE, C.

The appellant was charged by indictment in the circuit court of Wright county at the June term, 1926, with having, on June 2, 1926, feloniously ravished and carnally known Belle Claxton, forcibly and against her will. On October 25, 1926, on the application of the defendant, a change of venue was awarded to the circuit court of Webster county, where the defendant entered a plea of not guilty, and on a trial to a jury on September 27, 1927, was found guilty as charged and his punishment assessed at imprisonment in the penitentiary for a term of five years. Defendant appealed.

Belle Claxton testified in substance: I live at Hartville in Wright county and have lived in Wright county all my life; am forty-five years of age; am the wife of George Claxton; we have seven children living. On the afternoon of June 2, 1926, I went to the home of Mrs. McKinney (colored) and took samples of goods I was selling. I showed my samples to Mrs. McKinney, who lived at the edge of town, and started back to Hartville by the road past Cottengim's house, which sets back from the road 75 or 100 feet. He called to me saying he wanted to buy some shirts. I asked if his mother was at home; he said she was in the kitchen. I went in and sat down on the porch swing. He said, "Come in." I said: "No, it is warm. I am tired." He looked at the samples and said: "Come in, Mother wants to see them." And as I got inside the door he set the sample case down, slammed and latched the door, and grabbed me. I did not see his mother while I was there. He grabbed me by my arms and said: "I will buy a shirt if you will do to suit me." I begged him to turn me loose. He commenced cursing. I tried to get loose but he held me. I commenced crying and tried to hollo, and every time I tried to hollo he slapped his hand over my mouth. There was another room there with the door open. We wrestled. I tried to get away from him; he shoved me into the other room. It was dark; he throwed me down on the floor. He got on me. I tried to get up every way I could, but he held me down. When I would raise up, he would thump my head on the floor every time I tried to raise up. He did that ten or twelve times till I gave out. Every time I tried to hollo he choked me. He had sexual intercourse with me. We scuffled there all of half an hour before he had sexual intercourse. He put his hand over my mouth and nose; he had me almost smothered; so weak I couldn't help myself any longer. He tore my clothing, my bloomers. I tore both knees out trying to get up after he threw me down on the floor. I was bruised on my neck, breast, chest, arms, and legs; the worst bruises were on my arms where he held me. Along towards the last he said: "See if that door's locked." I heard footsteps while I was in that position. Gene Moody came in; he is about 17. When Cottengim got off me I was starting to get up; Gene Moody threw me back. I told him I couldn't help myself; was clear smothered and begged him to let me up, but he didn't. He had intercourse with me. I did everything I could to prevent Cottengim from having intercourse with me. While Moody was having intercourse with me, Cottengim went back in the front room where my pocketbook was; when he grabbed me, it fell. I had $5 in the pocketbook. He got it. When Moody got off me I got up as soon as I could. I was so weak I was quite a little bit trying to get up. I waited a few minutes then and got up. When I started away Cottengim said: "If you go uptown and tell this we will make it up that we caught you out with Tom Winn, more than that, we will blow your damn head off." I made no reply. I did not see Cottengim's father or mother while I was in his house. When I got out I started up town. The Moody boy cried out: "Mrs. Claxton, wait a minute. I will bring your money." He brought it all but a dollar. I come to town as soon as I could; had to rest three times. I came to Hunter's store. I was give out. I waited a minute and went to Dr. Mott's office; he was not in, and I went to Dr. Latimer's office. He was gone. I went to the probate judge, George Murrell's office, and told him how I had been treated that afternoon and inquired for the prosecuting attorney, N. J. Craig. They said he would be in Hartville the next day. My legs were blue and bruised for ten or twelve days. My arms were bruised and sore so I could hardly use them. My head was in bad shape and sore and ached continually for four or five days. I went on home after talking to Judge Murrell. My eighteen year old daughter, Virgie Claxton, and the small children were there. I was crying when I went in, and she asked me what was the matter. I told her what had taken place. I showed her the bruises on my body, neck, and legs, and the bloomers I wore that day. There was a hole in each knee in these bloomers; in the center he tore them out; he tore them with his hands. I showed my bruises to N. J. Craig, John N. Pryor, Mrs. Lucy Pryor, Mrs. Mott, Mabel Burnett, Birdie Newton, and Dr. Mott. I saw the prosecuting attorney, Mr. Craig, the next day, and told him how I had been treated. Shortly after that I appeared before the grand jury. This all occurred in Wright county, Mo.

Cross-examination: I have been married to my husband twice. At the time this took place I was divorced. We had been divorced a year. This taken place June 2d. We were married July 17th, after. I had been living with the children in Hartville. Before I went to Mrs. McKinney's I was over to see Mrs. Steele. The Gasconade river is about a quarter of a mile from Hartville. Mrs. Steele lives there on the bank of the river. I crossed the river on the bridge. I was not down in the hollow. I did not see Vincent Cottengim or Gene Moody or Tom Winn that day. I did not see Tom Winn down there. I did not meet him that day. I did not make an appointment with Cottengim and Moody; never seen them at all.

N. J. Craig, Virgie Claxton, John N. Pryor Mrs. Lucy Pryor, and Dr. and Mrs. J. R. Mott, to whom Mrs. Claxton testified she showed her bruises and made complaint, corroborated her statements. Virgie Claxton also testified that her mother's bloomers were torn when she came home on the afternoon of June 2d.

Steele Turner testified: I had a conversation with the defendant on Saturday, after June 2, 1926, near Hartville, about his difficulty with Mrs. Claxton. He said, "I guess I am going to get into some trouble." I think he said she had come to his house the other day and they got into it. After he told me the trouble, I said: "Well, did you get it?" And he said: "You are damn right I got it."

Cross-examination: He just said she came down to the house. He didn't say she consented to let him have it. That was about all that was said. I hadn't heard of it before. I live about seven miles east of Hartville.

Mrs. Agnes McKinney testified: I live at Hartville. I know Mrs. Belle Claxton when I see her. She was at my house on the afternoon of June 2, 1926. She had some cases of goods to sell. She sat on the porch and called the girl and showed the samples. She was there about half an hour. I live a quarter of a mile east of town. She went back toward town. There are no houses between our house and Cottengim's; none across the street as you go to town. Mrs. Hake lives across the street from Cottengim's. From this point the evidence is fairly summarized by the Attorney General:

"The defense offered a number of witnesses who testified that they were acquainted with the general reputation of the prosecutrix, Belle Claxton, for virtue and chastity, and that her reputation was bad.

"Another witness, who lived within two hundred yards of the defendant's place, testified that one afternoon the first part of June, 1926, she saw prosecutrix go into the house of the defendant.

"The defendant testified in substance that on June 2, 1926, he saw the prosecutrix in a compromising position with Tom Winn on the bluff east of the river near the town of Hartville; that he and Gene Moody were together at the time they saw Mrs. Claxton and Tom Winn; that immediately after this they met the prosecutrix and defendant asked her for a date; that she finally told him she would come down to his house that afternoon; that he and the Moody boy went to his home about four o'clock that afternoon and a little while thereafter the prosecutrix came; that she came in and they had sexual intercourse by mutual consent; that after this act was performed Gene Moody went into the room where Mrs. Claxton was but the defendant did not know whether the Moody boy had sexual intercourse with the prosecutrix. The defendant further testified that he did not take hold of the prosecutrix and pinch and bruise her, that she did not resist at all.

"On cross-examination the defendant stated that he did not know whether the prosecutrix knew that his father and mother were not at home on the day in question.

"The father of the defendant testified that he had a conversation with Steele Turner, witness for the state, who testified about a conversation he had with defendant, and that Turner told him that he never had any conversation with Vincent Cottengim.

"State's rebuttal. The state in rebuttal put on the witness stand Gene Moody who testified that he and Vincent Cottengim did not see the prosecutrix in the woods with Tom Winn as the defendant stated. This witness further testified that the defendant had approached him and asked him to testify that they had seen Tom Winn and Mrs. Claxton on the hill east of Hartville.

"This witness testified on redirect examination that he was in the defendant's home when Mrs. Claxton came there; that he was...