State v. Cunningham

• Decision Date: 18 November 1889
• Citation: 100 Mo. 382,12 S.W. 376
• Parties: STATE v. CUNNINGHAM.
• Court: Missouri Supreme Court

12 S.W. 376

100 Mo. 382

STATE v. CUNNINGHAM.

Supreme Court of Missouri.

November 18, 1889.

RAPE — CONSENT — JURORS — COMPETENCY.

1. The evidence showed that prosecutrix, while mentally weak, was not insane, but was able to attend to her household duties. About dark defendant entered her house, dragged her out, despite her resistance and protests, placed her in a wagon, which was driven by another man, lay down with her, and covered her and himself up with a tarpaulin. After driving for some time, they stopped at a saloon about two hours, prosecutrix remaining in the wagon in a state of apparent unconsciousness. Defendant then had intercourse with her. She appeared during all the time to be dazed, and she was in an advanced stage of pregnancy. After delivery she became insane, and hence unable to testify. Held that, though it did not appear that she resisted or that force was used when intercourse was effected, the evidence showed want of her consent; as resistance and force are only facts bearing on the question of consent, and, in case of mental weakness, less evidence of want of consent is necessary than where the female is of sound mind.

2. A juror stated on his voir dire that he did not know the defendant or the prosecutrix, but remembered reading of the case when it occurred, and thought it a hard case, and could not say that he had no opinion, but that his opinion would not prejudice him as a juror. On cross-examination he said that the newspaper report produced an opinion in his mind, which could be only removed by evidence, and that the defendant would have to prove his innocence. On re-examination he said that if the newspaper report were shown to be true he would retain his opinion, but that if the facts were shown to be different he would arrive at a different conclusion. If sworn as a juror, he would be governed only by the evidence, and would pay no attention to what he had read, that his attention would be drawn from the newspaper account, and that he could give defendant a fair trial. Held, construing his whole examination together, he was qualified. It being a question of fact, all doubts should he resolved favorably to the finding of the trial court, and as it did not clearly appear that the juror had such an opinion as to bias his mind, the decision favorable to his competency should be sustained.

SHERWOOD, J., dissenting.

Error to St. Louis criminal court; JAMES C. NORMILE, Judge.

Thomas Cunningham was indicted for, and tried and convicted of, rape, and sentenced to confinement in the penitentiary for 15 years. He brings error.

Chas. P. Johnson and Silver & Brown, for plaintiff in error. John M. Wood, Atty. Gen., and J. G. Lodge, for the State.

BLACK, J.

The defendant was convicted of rape, committed upon the person of Mrs Gutting. Objections were made to several jurors for cause; and, as the ruling of the trial court upon the qualification of Mr. Wolsey presents the strongest case in favor of defendant's objections, the examination of the other jurors need not be set out. This juror, upon his examination by the state, testified: "I do not know the defendant, nor do I know Mr. or Mrs. Gutting. I remember of reading of the case in the newspaper shortly after the affair occurred. I thought it was a pretty hard case. I can't say but I have an opinion about the case. It would not prejudice me in the trial." By counsel for defendant: "Question. You did form some opinion at the time of the occurrence, did you, when you read it in the newspaper? Answer. Well, I thought it was a kind of a hard case, of course. Q. And you formed an opinion that it was a hard case? A. At that time; yes, sir. Q. Well, you have nothing to change the opinion, have you? A. Never thought of it since. Q. You have got that opinion yet? A. Well, I have got that opinion yet, as I read it in the paper; if evidence is proved to the contrary, I can give a just verdict. Q. In other words, if you went on the jury you would have to have evidence to change that opinion you have formed? A. Yes, sir. Q. If you were to take your seat now, you would have a bias or prejudice in your mind? A. Yes, sir. Q. A bias and prejudice that would require evidence to remove? A. Yes, sir. Q. In other words, the defendant would have to prove that he was innocent? A. Yes, sir." He states on re-examination by the state, what he means is that if the newspaper report is shown to be true then he would retain the opinion he had formed; but, if the evidence showed another state of facts, he would arrive at a different conclusion. By the court: "Question. Have you any prejudice in the case that would prevent you from giving him a fair trial? Answer. Nothing to prevent me from giving him a fair trial. Q. Then would or would you not pay any attention to what you read in the paper? A. No, sir. If I am employed as a juror, it would take my attention from the paper. If I am sitting as a juror, I judge by what is put forth. Q. In the court room? A. Yes, sir." In answer to other questions, he says he could and would be guided by the evidence advanced on the trial. The examination of this juror is lengthy, but the foregoing presents the essential parts of it.

The statute provides that a juror may be sworn, though he has formed an opinion, if it be founded on rumor and newspaper reports, and be such as not to prejudice or bias his mind. The rule repeatedly asserted under the statute is, in substance, this: A juror who states on his examination that he has formed and expressed an opinion as to the guilt or innocence of the accused, and that opinion has been formed from rumor or newspaper reports, and that it would require evidence to remove the opinion, is not an incompetent juror; provided it shall appear to the satisfaction of the court that such opinion will readily yield to the evidence in the case, and that the juror will determine the issues upon the evidence adduced in court, free from bias. State v. Walton, 74 Mo. 271, and cases cited; State v. Bryant, 93 Mo. 302, 6 S. W. Rep. 102. This rule, so often asserted by this court, is in accord with that where it is said: "The true doctrine is that if the juror's conceptions are not fixed and settled, nor warped by prejudice, but are only such as would naturally spring from public rumor or newspaper report, and his mind is open to the impressions it may receive on the trial, so as to be convinced according to the law and the testimony, he is not incompetent." 2 Grah. & W. New Trials, 378. Now, the opinion of the juror in this case was based upon what he had read in the paper over a year before the trial, since which time he had not thought of the matter. There is but one question left, and that is whether it appears the opinion thus formed is such as not to bias his mind in the trial of the case. Does it appear that the opinion is one which will readily yield to the evidence? This question, it may be observed, in the first place, is to be tried by the trial court as a question of fact; and the finding of the trial court ought not to be disturbed, unless it is clearly against the evidence. All doubts should be resolved in favor of the finding of the trial court. McCarthy v. Railroad Co., 92 Mo. 536, 4 S. W. Rep. 516. Moreover, the question as to the qualification of the juror must be determined, not from a few catch-words drawn from him by a series of questions, but from his whole examination, including his demeanor while on the witness stand. When he says he would have a prejudice and bias which it would take evidence to remove, and the defendant would have to prove his innocence, he is evidently speaking of the case on the supposition that the circumstances as stated in the newspaper report should turn out to be true. His attention is called to the newspaper account, his opinion thereon, and then the direct and leading questions are asked which bring out the statements. When he is given an opportunity to make a full explanation, it appears he has no bias at all. He understood it to be his duty to disregard the newspaper reports, and this he says he could and would do. His notions of the case were nothing more than such as any one would form from reading a newspaper report, and it is but common information that such reports have little or no influence upon a fair-minded man when he is called upon to determine the fact in the light of evidence given under oath. If such a juror is to be rejected, it must be because he is an intelligent, honest, fair-minded man, and not because he has any opinion which would in the least sway his mind from an impartial consideration of the evidence.

Mrs. Gutting resided on an out-street in the city of St. Louis, with her husband and two children. She had been subject to aberrations of the mind for four or five years, and for two years prior to the occasion in question she had, according to the testimony of her husband, spells two or three times a week, when she imagined the persons who came to the house came there to steal or carry off their property. In other respects she appeared to be well, and at all times attended to her household duties, taking care of the children. On the 7th December, 1886, she prepared breakfast for her husband as usual, and he left for his work. Cunningham, the defendant, was a street-vendor of produce, and in that capacity had been at the house on several occasions. About 6 o'clock in the evening of the day last mentioned he and Maher went to the house with a two-horse wagon, having high sideboards, but no cover. According to the evidence of Maher, who was jointly indicted with defendant, he went to the house to sell some butter, but did not go in. Defendant then left the wagon, and went into the house, and closed the door after him,...