State v. Espenschied

• Decision Date: 19 May 1908
• Citation: State v. Espenschied, 212 Mo. 215, 110 S.W. 1072 (Mo. 1908)
• Parties: STATE v. ESPENSCHIED.
• Court: Missouri Supreme Court

110 S.W. 1072

212 Mo. 215

STATE v. ESPENSCHIED.

Supreme Court of Missouri, Division No. 2.

May 19, 1908.

1. RAPE—OFFENSES—ASSAULT WITH INTENT TO RAPE.

The law is well settled in this state that, to warrant a conviction for assault with intent to rape, it must be shown that it was the intention of the person making the assault to accomplish his purpose, and to overcome any and all resistance offered by the person assaulted.

2. SAME—PROSECUTION — TRIAL — QUESTIONS FOR JURY.

In a prosecution for assault with intent to rape, whether it was defendant's intention to force compliance at all events and regardless of any resistance the victim might make, was a question for the jury.

3. CRIMINAL LAW—APPEAL—OBJECTIONS BELOW —MOTIONS FOR NEW TRIAL—NECESSITY.

Where a motion for a new trial in a criminal case did not assign as error the giving of the state's instructions, but simply alleged that the "court did not instruct as to all of the law in the case," such instructions are not subject to review in the Supreme Court.

4. SAME—EXCEPTIONS—SUFFICIENCY.

In a criminal case, an exception by defendant to the giving of certain instructions, made solely on the ground that the court failed to instruct the jury on all questions of law in the case, is too indefinite to be available in the Supreme Court, where defendant did not intimate or suggest to the trial court upon what feature it had failed to instruct or request it to instruct in any manner.

5. SAME—MOTIONS FOR NEW TRIAL—VERDICT CONTRARY TO EVIDENCE.

In a criminal case, it is only where there is no substantial evidence to support the verdict that it will be set aside on such ground, and so an allegation in a motion for a new trial that "the verdict is against the evidence" is insufficient.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Charles E. Espenschied was convicted of an assault with intent to rape, and, his motions for a new trial and in arrest having been overruled, he appeals. Affirmed.

Farris & Matthews, for appellant. The Attorney General and N. T. Gentry, for the State.

BURGESS, J.

On July 2, 1907, the defendant was convicted in the circuit court of the city of St. Louis, and his punishment fixed at two years' imprisonment in the penitentiary, under an information, duly verified and filed in said court by the assistant circuit attorney of said city, charging him with an assault with intent to rape one Mrs. Margaret Flower, at said city, on October 1, 1906. After unavailing motions for a new trial and in arrest, defendant appealed.

The facts, briefly stated, are as follows: The prosecutrix, Mrs. Margaret Flower, who is a widow, was employed as cook at the Association Hospital, in St. Louis, Mo. On the 1st of October, 1906, Mrs. Flower went with Dr. and Mrs. Adcock to a lodge meeting, and was returning to her home at said hospital. While riding on the street car she saw the defendant, who was also on the car, and who appeared to be somewhat intoxicated. The defendant was sitting in the front end of the car, and frequently looked around toward Mrs. Flower. The prosecutrix and the defendant both got off the car at the same place, and both took an Olive street car; the prosecutrix getting off at Grand avenue. After she got off at Grand avenue prosecutrix saw the defendant get off, and saw him following her. Defendant took hold of prosecutrix, and started to walk along with her. She told him that he had made a mistake, and had taken hold of the wrong person. Defendant asked her to go to a room with him, which she declined to do. The defendant began using profane language, and held onto prosecutrix, and insisted that she must go with him to a room. On account of the lateness of the hour (it then being half past 11), there were no persons on the street in sight. Prosecutrix tried in every way to jerk loose from defendant, and tried to scream, when the defendant said: "You scream, if you dare; and you will see what I will do." The defendant again insisted upon her going to a room with him, and offered prosecutrix $20. The prosecutrix indignantly refused, and immediately began to scream. The defendant still held on to her arms, and dragged her along the street some distance. When they reached the alley at the side entrance of the hospital, the defendant attempted to drag prosecutrix down the alley toward a barn. At this prosecutrix began to call to some colored people who lived near said barn. At the same time she took hold of a telephone pole. The defendant said: "If they [meaning the colored people] come down here, I will give them $2 to shut their mouths." In the scuffle the skirt and waist of prosecutrix were considerably torn, which, when he discovered, the defendant said: "You will go with me. I will tear every God damn rag off of you, but I will accomplish my desire." Defendant then struck prosecutrix once in the face and three or four times on the body. Prosecutrix jerked loose from defendant, and ran across the street to the opposite corner. Defendant pursued her, and caught her as she was going up the steps into the hospital building, where she lived. Prosecutrix rang the bell and pounded on the front door; but no one came just then to admit her. Defendant again took hold of prosecutrix and threw her down on the steps, defendant falling with her, and the two then rolled down to the bottom of the steps. Prosecutrix quickly jumped up and ran some distance away from the defendant, and met a gentleman named Brooks. The defendant followed her, and she begged Mr. Brooks for God's sake to protect her. The defendant came up, and said that she was a friend of his, and was going with him. Prosecutrix denied this, and again begged Mr. Brooks to save her, saying defendant had assaulted her, and showed him where the...