State v. Eslick

• Decision Date: 06 December 1919
• Docket Number: No. 2598.,2598.
• Citation: 216 S.W. 974
• Parties: STATE v. ESLICK
• Court: Missouri Court of Appeals

216 S.W. 974

STATE v. ESLICK

No. 2598.

Springfield Court of Appeals. Missouri.

December 6, 1919.

Appeal from Circuit Court, Howell County; E. P. Dorris, Judge.

W. E. Eslick was convicted of assault, and appeals. Reversed, and defendant discharged.

Moore, Barrett & Moore, of Ozark, and W. N. Evans, of West Plains, for appellant.

B. L. Rinehart, of West Plains, for the State.

BRADLEY, J.

Defendant was charged by information of the prosecuting attorney with the crime of rape alleged to have been committed upon Katie Crone, a young single girl just past 18 years of age. Defendant is a young man, and 25 years of age, and single. The trial resulted in a conviction of common assault, and the punishment fixed at a fine of $50. From this conviction defendant appealed.

Defendant's home was in Ava, in Douglass county, and prosecutrix resided with her mother and stepfather in Mountain View in Howell county, where they conducted a rooming and boarding house. Defendant was engaged in writing life insurance in the community in and about Mountain View, and was boarding with the mother and stepfather of prosecutrix. The offense is alleged to have been committed on March 31, 1919, at which time defendant and prosecutrix had known each other only a short time. The version of prosecutrix is: That defendant had on several prior occasions importuned her to go out riding in his Ford runabout, and that she had refused to go. That on the evening of the alleged offense defendant asked her to go to a show, and that she refused, and that he then proposed a ride around town in his car, and that she accepted. It was dark when they started, and that they drove out about two miles, when defendant kissed her, and that she then told him to turn around and go back to town, and thought that he was going to do so; but that he turned the car a little to one side of the road and shut off the engine. That they sat there in the car and talked, and that she insisted on going back, but defendant would not do so. That she then told defendant that she was going to get out and go back, and that he said she must not do that. That defendant solicited sexual intercourse, and spoke about using a rubber, and that she did not know what a rubber was, and asked defendant to let her see it, and that he placed the rubber in her hand. That where they stopped there was an orchard on one side, and timber on the other, and not so very far to a house, and that she told defendant she would hollow for help at the house, and that he told her no, that she must be quiet, and must not hollow for help, and "kept on talking, and told me I must be quiet, and must not get out of the car." That whenever she would say anything that defendant would say that "he was going to have it without the rubber. I had to be still, and I was afraid not to. He said he would go ahead with or without the rubber. That was the only reason I was still, because I was afraid he would go ahead without the rubber." That he had his hands on her shoulders, and that one of her feet was under the steering wheel, and the other one on the door on the other side. "He pushed me down that way, and told me where to put my feet. Q. What did you do then? A. Well he had his hand under my coat up here, then later put it under my dress. Q. Did he have his clothes down at that time? A. Not at that time. Q. Did he at any time? A. Yes, sir. Q. Go ahead. A. Well, after he started, and he said he would use the rubber. It was dark. I couldn't see whether he did or not, but he said he did, and then I told him to quit, and he did. Q. Did you ever feel hie private parts? A. Yes, sir. Q. Did he put them against your private parts? A. Yes, sir. Q. Was there any penetration? A. No, sir." After the circumstances detailed prosecutrix says defendant asked her to kiss him, and that she told him she would if he would take her back to town, and that he said he would, and that she kissed him, and that she did so because she was afraid he would not take her back to town; that they got back to town about 9 o'clock; that the ride in the automobile was on Monday night, and that she told no one of her experience until Wednesday evening when she told her mother; that she told her mother because the defendant was staying there, and she was afraid he might try it again.

On cross-examination prosecutrix stated that she told defendant after they started that she knew the roads, and that they would "just drive around"; that defendant embraced her on the way out; that she did not try to get to any house, and made no outcry, but she says she told defendant she would make an outcry, and that defendant said it was best not to. "Q. And the threats he made against you was that he wouldn't use the rubber? A. Yes, sir. Q. And to keep him from going ahead without that you didn't scream; is that it? A. Yes, sir. Q. Now who suggested the rubber? A. He did. Q. And what did you say to that? A. I asked why it had to be either way. Q. And what did he say? A. He said it would be one way or the other. * * * Q. Then in that discussion, and after you had talked awhile, then he asked you to put one of your feet under the steering wheel? A. Yes, sir. Q. And you did so? A. Yes, sir. Q. Then he asked you to put the other over the door, or on top of the door? A. Yes, sir. Q. And you did? A. Yes, sir. Q. Then he got between your legs? A. Yes, sir. * * * Q. You knew he had put the rubber on his person? A. He said he did. Q. And you felt of the rubber before he did? A. Yes, sir. Q. It was after he had it on? A. Yes, sir. Q. You wanted him to use it? A. I didn't want him to do either way. Q. But if he did? A. Yes, sir; because he said there wasn't any harm. * * * Q. It was in a Ford runabout? A. Yes, sir. Q. At that time he was on his knees, wasn't he? A. I don't know whether he was on his knees or not. He was in front of me. Q. And in between your legs? A. Yes, sir. Q. At that time he asked you to push your body toward him? A. He pulled me down with his hands. Q. Didn't he at that time ask you to push your body towards him, and you did? A. I was laying down in the seat. Q. And he asked you at the time he got in between your legs to move toward him, and you did. A. I don't think so."

Defendant's version is that he took the prosecutrix out driving and solicited sexual intercourse, and that she consented, and that he had sexual intercourse with her, using a rubber.

The court instructed on assault with intent to rape, and common assault. Defendant at the close of the state's case, and at the close of the whole case, interposed his demurrer to the evidence, and in his brief here challenges the sufficiency of the evidence and the correctness of the instructions. We have, in view of defendant's demurrer, been compelled to set out somewhat in detail the facts adduced by the state, and we might say here that there was nothing brought out by defendant which tended to strengthen the state's case. The assault of which defendant was convicted has been designated as the assault of lust as distinguished from the assault of violence. As to whether defendant is guilty of the assault of lust under the version of prosecutrix depends upon the question of...