State v. Edie

• Decision Date: 07 February 1899
• Citation: 147 Mo. 535,49 S.W. 563
• Parties: STATE v. EDIE.
• Court: Missouri Supreme Court

49 S.W. 563

147 Mo. 535

STATE v. EDIE.

Supreme Court of Missouri, Division No. 2.

February 7, 1899.

ASSAULT WITH INTENT TO RAPE — EVIDENCE — INSTRUCTIONS — REASONABLE DOUBT — REMARKS OF COUNSEL.

1. Defendant did not deny any of the particulars of an assault with intent to rape, as testified to by prosecutrix, except the intent to ravish. Immediately after the assault, prosecutrix evasively answered a neighbor who came to her rescue as to the trouble, but complained to her brother on seeing him on the night of the same day. Prosecutrix and her brother undertook to settle with defendant the next day, but, the latter failing to raise the money, prosecution was commenced. Held, that a conviction was justified.

2. A requested instruction is properly refused where the court has substantially embodied it in the charge.

3. An instruction that reasonable doubt, to authorize an acquittal, must be a substantial doubt under all the evidence, and not a mere possibility of innocence, is a sufficient definition.

4. The prosecuting attorney, in his argument on a trial for assault with intent to rape, said that, if defendant had not assaulted prosecutrix, she could have withstood the attack made on her by defendant's attorney without crying. Defendant objected, as there was no evidence to that effect. Defendant, in making the assault, had placed his knees on prosecutrix's abdomen, which hurt her so that she could not go out for several days. Held, that there was no error, where the court admonished counsel to stay in the record, and no exception was saved because the court did not go further.

5. Defendant objected to the argument of the prosecuting attorney, and he was admonished to stay in the record. He then continued: "The gentlemen object. They talk about these outside issues, and when I attempt to answer them they object. They have been objecting all the time. They object to the case being instituted. They object to the witnesses going on the stand. They object to everything that has been done that tends to show the guilt of defendant." Held, that it did not exceed the limits of fair discussion.

Appeal from circuit court, Chariton county; W. S. Stockwell, Special Judge.

Robert Edie was convicted of an assault with intent to rape, and he appeals. Affirmed.

At the October term, 1895, of the Chariton circuit court, the defendant was indicted for an assault with intent to rape. He was duly arraigned, and pleaded "Not guilty." The cause was continued to the April term, 1896, and again at the April term was continued to the October term, 1896. On October 28, 1896, it was tried, and defendant found guilty. Thereupon a motion for new trial was filed, the only ground thereof appearing in this record being the misconduct of one of the jury in qualifying after having expressed an opinion as to the guilt or innocence of defendant. The court sustained this motion for a new trial on the 4th of December, 1897. At the April term, 1898, Judge W. W. Rucker, the regular judge, being absent, an election was held for a special judge to preside at said term; and Hon. W. S. Stockwell was duly elected, and took and subscribed the oath required. At this term the defendant was again tried and convicted, and sentenced to the penitentiary for two years. It is from this conviction he appeals.

C. C. Hammond and Crawley & Son, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, Asst. Atty. Gen., for the State.

GANTT, P. J. (after stating the facts).

1. The principal assault upon the judgment of the circuit court is that the evidence does not support the verdict. This argument requires a summary of the testimony. The prosecutrix was a widow with one child, a daughter, about 3 years old, at the date of the alleged assault. She lived about five miles from Salisbury, in Chariton county, on a farm. Her family consisted of herself and little daughter, a brother, Enoch Skinner, a young man about 20 years old, and a cousin, a man by the name of George McHargue, who has been adjudged insane. The defendant lived about three-quarters of a mile distant, on another farm. On the morning of July 25, 1895, Enoch Skinner, brother of the prosecutrix, left home on business. After he left, defendant stopped at her house, and inquired if Enoch had gone to town, and was told that he had, whereupon defendant left. During the afternoon the prosecutrix and her daughter and George McHargue went to Salisbury, in a buggy, to do some trading. Prosecutrix saw defendant in one of the stores in Salisbury during the afternoon. Having made her purchases, among which was a broom, she started home, and, after leaving the town, discovered she had left her broom. They turned round and returned to Salisbury. As they did so they met defendant going towards his home, driving rapidly. Having obtained the broom, the prosecutrix and her cousin, McHargue, resumed their journey home. On the way they overtook defendant, who was then driving slowly. He gave the road, and they passed him and reached home. After her arrival at home, McHargue took the team to the barn, and prosecutrix changed the little girl's clothing, and the child followed McHargue. The prosecutrix then went upstairs to change her own clothing. Having removed her dress, she heard some one coming up the stair steps, whom she took to be her cousin, McHargue. She stepped to the head of the steps, opened the door and looked out, and saw defendant coming up the steps. She told him to go down; she would be down in a few minutes; but he kept coming up, whereupon she shut the door, and braced herself against it, as the lock was broken. Defendant pushed the door open, and prosecutrix seized her dress and began putting it on, and told defendant that, if he did not let her downstairs, she would call George McHargue. He said: "Halloo for George. I met him going out as I came in. George can't hear you." Then she threatened to jump out of the window. Defendant then produced a bottle of wine, and told her she had to drink some. She told him she did not want any. She then ran to the door again, but he beat her there, and, in her effort to get him away from the door, he threw her against the wall. He then caught her and threw her on the bed. He got on her and held her down, with his hands on her shoulders and his knees on her body. Thereupon she screamed as loud as she could, and he threw the bed covers over her head and held them there. Defendant then got off her body, and pulled up her clothing and put his hands on her privates. She gave a whirl and hallooed for George again, and McHargue, hearing her, came up the steps. When McHargue reached the top of the steps, defendant loosed the prosecutrix, and McHargue asked him what he was doing there, whereupon defendant knocked him down. Whereupon defendant left the house, saying to the prosecutrix that, if she tried to do anything, he would tell a few things he had heard. J. W. Owens testified that he lived about 200 yards from the home of prosecutrix. On the afternoon of July 25, 1895, he was at his home. He heard a terrible stamping and tramping over at the house of prosecutrix, like somebody was aiming to tear the house down. Heard George McHargue swearing pretty loud. He went up to see what the trouble was. As he went up to the house, he saw Bob Edie, the defendant, leaving the house of prosecutrix. He heard something like a scuffle. When he got there the prosecutrix was in the room, working around. He asked her what the trouble was, and she said the baby fell out of the buggy, and McHargue got mad about it. The prosecutrix testified that the first person she saw after the assault was Bill Owens. He said to her, "Why, George is mad, ain't he?" and she answered, "Yes." She said she hated to tell him what was the matter until her brother, Enoch, came home. She thinks this was about 6 o'clock. She sat up that night until her brother came home, and told him about it. He said they could not do anything until next day. She testified that she did not go to any of the neighbors that night, because she was hurt. As soon as she felt able, she went to her sister's. Enoch Skinner testified that his sister made complaint to him that night upon his return home, about 11 o'clock, or later. About 9 o'clock next morning Enoch went to the field where defendant was making hay. He at once approached defendant, and demanded to know what made him treat his sister as he had the night before. He testified that defendant said he did not aim to hurt her, and commenced begging. He said he wanted to settle, — did not want any trouble. Enoch told him that he was not the one to settle with; to come down and see his sister. Defendant came down, and went in the house and apologized, and said he was sorry for what he had done, and aimed to settle it. Thereupon Enoch said to the prosecutrix, "Don't be light on him at all," and the prosecutrix said, "Not less than $800 will settle it." He said he did not have that much money. They gave him two days to raise it. He again apologized, and said he knew she was an honest woman, and he was sorry for what he did. Witnesses for defendant testify that Enoch came into the field and began to curse and abuse defendant next morning, and threatened him with the law, and demanded $600. The prosecutrix made affidavit in a few days, and defendant was arrested. She also brought a civil action against him for damages, but, being unable to give bond for costs, it was dismissed on motion. George McHargue was tendered as a witness, but, upon objection by defendant, was excluded because he had been adjudged insane by the probate court. Mr. Saunders was called to prove the reputation of defendant, but testified that he did not know what defendant's neighbors generally said about his character as a peaceable, law-abiding man; never heard it discussed prior to this occurrence. He says he was home when Enoch Skinner came next morning to see defendant. Defendant was cutting hay...