State v. Duffey

• Decision Date: 21 May 1895
• Citation: 31 S.W. 98,128 Mo. 549
• Parties: STATE v. DUFFEY.
• Court: Missouri Supreme Court

31 S.W. 98

128 Mo. 549

STATE v.DUFFEY.

Supreme Court of Missouri, Division No. 2.

May 21, 1895.

RAPE — AGE OF PROSECUTRIX — SUFFICIENCY OF EVIDENCE — REPUTATION OF PROSECUTRIX.

1. Where the prosecutrix, her mother, and another person testified that prosecutrix was under 14 years of age, and other witnesses, who had less opportunity to know the fact, testified that she was over 14, the evidence is sufficient to sustain a verdict that she was under 14.

2.On a trial for rape, prosecutrix, who was under 14 years of age, and one S., testified that while they were out driving defendant and L. rode up, and, seizing the horse, compelled prosecutrix to alight, and that defendant took her into the brush, and raped her, while L. kept S. under cover of a revolver.Defendant testified that he and L. rode up, and that he solicited prosecutrix to leave the buggy, and to take a walk with him into the brush, which she did, but that no intercourse took place.Another witness testified that defendant admitted he had intercourse with prosecutrix.Other witnesses testified that prosecutrix denied that defendant had intercourse with her.Held, that the evidence was sufficient to sustain the conviction.

3.The fact that prosecutrix's reputation for chastity was bad is no defense, in a prosecution for rape, where she was under 14 years of age, as her consent to the act was immaterial; but the evidence of such reputation is admissible as affecting her credibility.

Appeal from circuit court, Gentry county; C. A. Anthony, Judge.

Edward Duffey was convicted of rape, and appeals.Affirmed.

Chas. O. Patton, R. P. Duncan, and Gibbany & Ratcliff, for appellant.R. F. Walker, Atty. Gen., and Morton Jourdan, Asst. Atty. Gen., for the State.

GANTT, P. J.

The defendant, Ed. Duffey, was indicted, tried, and convicted at the September term. 1894, of the Gentry circuit court, of rape of Daisy Wilson, a female child under the age of 14 years, to wit, 13 years, on 19th of May, 1894.He was sentenced to the penitentiary for five years, and from that judgment has appealed to this court.

The facts disclose a very low grade of morals among all the actors connected with the crime charged.The testimony for the state tends to show: That on the night of May 18, 1894, the prosecutrix, in company with Elijah Summers, started in a buggy from Stanberry, in Gentry county, to drive to a dance at one George Allen's, some several miles in the country.That they drove out to Allen's, but did not get out of their buggy, turned, and started to return to Stanberry.They had not gone far, however, when they were overtaken by defendant and one John Lemley, who were riding horseback.That defendant caught the reins of the team driven by Summers, stopped it, and compelled the girl to leave the buggy, and accompany him across the road into the brush, where the prosecutrix says defendant forcibly ravished her.That she attempted to resist, and to make outcry, but was intimidated, and put and kept in fear, by the threats and exhibition of the pistol held first by defendant and then by his accomplice, Lemley.That upon the consummation of crime by defendant, Lemley also raped prosecutrix under the same circumstances.That while these deeds were being accomplished they in turn held the team, and kept Summers under cover of a revolver.It was shown that the prosecutrix was under 14 years of age.The prosecutrix and her mother both testify positively to this fact, though there was evidence for defendant that she was over 14.Defendant admits his presence at the time and place the crime was committed.He says he secured the consent of Summers to take "his girl" for a walk, while he(Summers) remained in the buggy, and held the team.That he took prosecutrix out in the brush.That they sat down and talked.That he suggested that they return to the buggy.That she said, "Ain't you going to do anything, after you brought me out here?"That he said, "No," and laughed at her.That she cursed him, and asked him for a bottle of whisky or 25 cents, and that he gave her 25 cents.That she asked him who the other fellow was (referring to Lemley), and he told her, and she said tell him to come over here, and he did.That when she and Lemley returned he asked her if they had had intercourse, and she said, "No, Lemley didn't have any money."It is also shown that defendant wrote a letter while in jail, in which aid to escape was asked.His admissions are also shown.An attempt was made to impeach the reputation of prosecutrix and her mother, but the reputation of the witnesses called for that purpose was in turn also impeached, and the jury evidently discarded it.For instance, one witness, at the time of testifying to the bad reputation of the parties, was himself under indictment for burglary and larceny; another witness, Lewis Deering, is shown to have pleaded guilty to petit larceny; and the defendant had pleaded guilty to burglary in the second degree, and had been sentenced to the penitentiary; he had also pleaded guilty to larceny from a dwelling house.Various errors are assigned and will be discussed in the order of appellant's brief.

1.The first ground upon which a reversal is demanded is that the verdict is against the evidence.Appellant concedes that the general rule is that before this court will relieve on this ground there must be a total failure of evidence to sustain the charge, or it must be so weak that the necessary inference must be that the verdict is the result of passion, prejudice, partiality, or evident mistake.State v. Glahn, 97 Mo. 679, 11 S. W. 260;State v. Cougot, 121 Mo. 458, 26 S. W. 566.But his contention is that this case falls within the exceptions, and the evidence upon the two essential facts that the female was under the age of 14 years and the act of coition or copulation was not sufficient to support the verdict, or establish either of these material facts.

The evidence as to the age of Daisy Wilson was as follows: She testified herself that she was 14 years old on the 2d day of July after this alleged offense on the 19th of May, 1894.Her mother, Maria Wilson, testified that Daisy was born July 2, 1880, at Mt. Ayr, Iowa.She did not keep or have a family record.She had six children.Daisy was the oldest, and the only child when she moved to Stanberry.William H. Sullivan testified that he knew the parents of Daisy Wilson.He remembered seeing Mrs. Wilson first in the fall of 1880.She then had a baby in her arms.The child was about two or three months old.He always understood Daisy was the child they had with them when they moved back from Iowa.George Shoemaker testified he lived on the same street with the Wilson's in February, 1881.Mrs. Wilson then had one small child.It might have been anywhere from one to three years old.Paid no attention to it.Mr. Samuel Jordan made the enumeration of school children for 1894, in May.He asked Mrs. Wilson Daisy's age, and she gave it as 14.Does not remember that he asked her birthday, or when she was or would be 14.Mrs. Cranor, for the defense, testified that she had a daughter that would be 16 in January, 1895, and Daisy was born in July after this daughter was born.John Cogdill testified in a general way that he had known Daisy about 12 years.Judged...