State v. Fitzgerald

• Decision Date: 16 February 1918
• Docket Number: No. 20658.,20658.
• Parties: STATE v. FITZGERALD.
• Court: Missouri Supreme Court

201 S.W. 86

STATE v. FITZGERALD.

No. 20658.

Supreme Court of Missouri, Division No. 2.

February 16, 1918.

Appeal from Circuit Court, Douglas County; O. H. Skinker, Special Judge.

Robert Fitzgerald was convicted of rape, and he appeals. Reversed and remanded.

Charged with the crime of rape upon one Mable Swearingin, a female child under the age of 15 years, defendant was tried in the circuit court of Douglas county, found guilty, and his punishment assessed at seven years' imprisonment. Defendant duly appealed. The crime is charged to have occurred in October, 1915.

The evidence upon the part of the state may be summarized as follows:

Mable Swearingin (hereinafter referred to as Mable) was born April 6, 1901, and at the time of the occurrence of the alleged crime was residing with her parents on a farm in Douglas county, Mo. Defendant, a young man over 20 years of age (his exact age is not given) lived on a nearby farm about three-fourths of a mile northwest of the Swearingin home.

On November 27, 1915, Mable died, as a result of poison self-administered. After the body was buried, some suspicious circumstances having come to light, the body was exhumed and examined by a physician, who found a condition of pregnancy three or four months advanced.

Mable's father testified that he had never seen the defendant or his daughter together, but on several occasions had noticed Mable's absence from the house, garden, or milk lot where she was supposed to be working, and on one or two occasions had seen her returning to the premises, coming from a locality from which at the same time he had seen the defendant walking away.

Mable's mother testified that the members of the two families did not visit each other very frequently, and that at different times during the months of July, August, and September, 1915, she had seen the defendant about the Swearingin premises, but on those occasions he did not come to the house. The mother and father both testified that some time in January, 1916 after the appellant's arrest and while he was out on bond, he passed the Swearingin house one night singing a song. The words of the song as remembered by the witnesses were as follows:

"Wheep ! Wheep ! By God! Right here's where I got it, but she's dead and gone, but all I ask, boys, is to keep me off !" (or, as one of the witnesses said, "keep them off").

Mable's sister Myrtle testified that in the summer of 1915 defendant and his brother came to a place in the woods where the witness and her sister Mable were gathering mulberries, and that on this occasion the defendant approached Mable, placed his arms about her, and the two walked away together, out of the witness' sight.

Gladys, the ten year old sister of Mable, testified that she had seen her sister Mable and defendant together a number of times during the summer of 1915, and had seen them put their arms about each other; that on one occasion while she was with her sister Mable and defendant out on the road near their home Mable threw a glove to the side of the road and asked the witness to get the glove. When the witness went to get the glove the defendant and Mable ran away from her out in the woods, and in a short time thereafter Mable came back to the house; that on one occasion defendant told the witness he would give her a dollar if she would not tell her father and mother "about him and Mable."

After Mable's death several letters were found in or about the Swearingin house by different members of the family. About 14 of these letters were introduced in evidence. Some of the letters were unsigned, others were signed "Robt." to Mable or "Robert," and some were signed by the initials "R. F." Most of the letters were addressed to Miss Mable Swearingin. One of the letters uses obscene language, but none of the letters expressly mention any acts of sexual intercourse. It will not be necessary to copy herein all of said letters, but we will copy a few of them which will serve as types. Copies of some of the letters follow:

Exhibit G: "Ongo, Mo., Aug. 3, 1915 Miss Mable Swearingin Hello Sweet How be you I am all O K this eave. You bet your sweet life Kido that dun me good when I got your letter and heard you was all O K. This m I was over thire a long time looking to see you eny time and guess you was in the hay field at work. I seen Myrtle this m She said you was at work ha ha Kid you will have to excuse bad scratching my knee don't make much of a riten dest it too dam soft. Yes you come to night and we try it again. Come over there where we was last night ill be there come Bout sun Down ill not try and not write much this time so bye bye. Robert to Mable."

Exhibit K: "Saturday m 10:30 Ongo, Mo., Miss Mable Swearingin Dear Sweet Heart ill take time this morning to scratch you a short letter as I diden git to see you last night why diden you corn over at the little rock yesterday eave I waited till all most dark. If you had com I was am to corn over in To day ill bring this letter over this after noon and hope [word rubbed out] I will see you when I git there and find a long letter under the little rock. Say Kidd if you git this in time come up in the corner of the old field when you git this. Say Kido I shore would like to know that you heard that night and will git this letter. It seems like I never is goin to get to see you eny more. I am some what down hearted to day and got the blues ha ha hop you are the same I just feal like ive lost my M S but hop not I guess you are gon to meeting to day I guess ill stay by my lonsom to. Say I shore was scared that night and isen quit over it yet. Say when I see you ill hug you just to bet the band. I seen My S Sat. eave goin after the cows but diden talk with her eny Say what was that but Willie H and F H you talk like in your letter that I had told thim that I was telling them I was meeting you down thire I haven seen them in a long time and if they told you eny thing it is a ______ lie and ill tell them so when I see them and if they told eny thing when I see you be shore and tell me that it was ha ha I guess You will find several mistakes in this letter for I am in a hurry. You can take them as kisses I guess I better qit for this time I would write a long letter but haven got time if I dont git to see you to day you write and tell me whar I can see you to night it might be that I diden com to the rite place last night and be shore and ans this just as soon as you git this and if you got time you come up in the corner of the old field. I be up there all eave I want know what them durn H has told you. So ill ring off ans soon. to my Ms from R F."

Exhibit F: "9-20...