State v. Fleming

• Decision Date: 25 May 1915
• Docket Number: No. 18716.,18716.
• Parties: STATE v. FLEMING.
• Court: Missouri Supreme Court

177 S.W. 299

STATE v. FLEMING.

No. 18716.

Supreme Court of Missouri, Division No. 2.

May 25, 1915.

Appeal from Circuit Court, Jefferson County; W. N. Evans, Judge.

Nicholas Fleming was convicted of assault with intent to rape, and he appeals. Reversed and remanded.

Upon an information charging him with the crime of assault with intent to rape, defendant was tried in the circuit court of Jefferson county, convicted, and his punishment assessed at three years in the penitentiary. Defendant has duly perfected an appeal to this court. As ground for reversal, he urges that the evidence is insufficient to support the verdict. The evidence upon the part of the state tended to establish the following facts:

The assault took place in the city jail or city hall in the city of De Soto, Mo., on the night of November 2, 1913. Lucile Young was the prosecuting witness, and at the time of the alleged assault was 18 years of age. She testified that she and her cousin, Edna Young, first arrived at De Soto, Mo., on the evening of October 27, 1913, and stopped at the Brazil Hotel, where they were staying on the night of this occurrence on November 2, 1913. She first saw the defendant about the second night after her arrival in De Soto. The defendant was then acting as night marshal, and he approached prosecutrix and her cousin as they were coming out of a restaurant and said to them: "You girls must quit hanging around that restaurant." One of the girls replied that they had a right to go and get something to eat, and they could not "help it if all the boys follow us." Defendant further said, "Why don't you girls stay in?" The witness further stated that the defendant tried to make a "date" with her that night. Witness next saw appellant about 1 o'clock on the night of November 2d, at which time the defendant and one Henry Norris, the city night marshal, went to the Brazil Hotel and arrested prosecutrix and her cousin and took them to the city hall or jail. This building was two stories in height; the upper part of the building being the city hall, and the lower portion being occupied as a jail. The door to the city hall was unlocked by one of the men and the two girls were taken into the city hall and the door was again locked. During a portion of the time that they were in the city hall, the electric lights were turned out; the appellant saying that he didn't want the neighbors to know they were there. Prosecutrix relates what occurred as follows:

"He put his arm around me and tried to kiss me." "I throwed his arm off of me." "Edna says, `Please, Mister, will you put the lights on? I am smothering,' and he says, `No, I won't put the lights on, and you are not going to smother.'" "He searched our suit case for us." "He tried to get his hands up under my dress, that was while the lights were on, and I took his hand down, and then he got on the other side of me, and then he put out the lights, and then Henry, he went to the `phone and said he was calling up the city attorney, and he said to him, `We want you up here.'" That then Henry said, `The city attorney says he is not coming down, and for us to hold you.' I don't know whether he told him that or not. Then Henry says, `Well, I guess I will have to lock you up until morning' and he hung up the `phone and says, `Nick [appellant], what do you say about it? You are the deputy sheriff,' and then he says to me, `Are you coming across?'" At that time "he put his arms around me and was holding me and kissing me, and was standing right in front of me." "And he tried to put his legs between mine and throw me down." "I was trying to get away from him and he says: `Are you coming across? Oh you know you are not so innocent, girls; you're no babies. Are you coming across?' He says that to me, and then he says, `Henry, they are not going to do anything here; we will have to make other arrangements than this;' and then he says, `If you are not coming across, we are going to take you down and lock you up for 90 days;' and I says, `I would rather have you kill me first;' and he took us to a back porch, back about 20 feet high, and he says, `You can jump over that, and it will be a quicker death, and it won't take much for a coffin.' He says that to me. Then he says, `Come on Henry, we will take them down and lock them up.'"

The girls were then taken downstairs and put in the calaboose, and in the cell was a cot. Prosecutrix further said:

"He tried to throw me down on the cot. He put one hand under my feet and one under my head. I was trying to get away from him. I was fighting him and trying to get away. They stayed down there quite a while, and then both of them got up and locked us up in there, and went on upstairs, and I don't know where they went to."

Appellant and Norris stayed away about an hour and a half and then returned to the jail. Norris took Edna upstairs, and stayed up there a while, and then brought her down to the jail and told appellant to go upstairs. While Norris and the other girl were upstairs, witness says that appellant was wrestling around with her, trying to throw her down on the floor, and that he said:

"`Don't make so much noise, you will wake the neighbors up;' and I says, `I don't care, I want to wake them up;' and he says, `Oh, shut up, you're no baby;' and then Henry came on downstairs and says, `Now, Nick, you go upstairs.'"

Witness stated that she refused to go upstairs and that appellant caught her by the arm and took her upstairs and locked the door behind them and that Henry said:

"`Nick, the first man that comes to the door, kill him.' And that Nick replied, `I will.' Then Henry says to Nick, `Do you want my gun, Nick?' and he says, `No, I have got a gun;' and he went on upstairs, and when we got upstairs, he put his hands under my legs and laid me on the table." "He tried to pull up my dress, and I got up off of the table, and went around the table, and then he got me to take off my coat, and he laid it on the floor, and he picked me up and laid me on the floor. He tried to pull up my dress there, and put his hands under my dress. He opened his pants, and then I got up, and he tried to get me down on the floor again." "I was crying and holloing. He put his hands over my mouth and told me to shut up. He says, `You are not any baby;' and he tried to stop me from holloing. After awhile he went on downstairs and left me up in there." In about two minutes he returned, "and then he took me on downstairs again, and then he locked me and Edna and Henry up in the calaboose, Nick did, in one of these little cells. He locked the three of us in there. Henry Norris didn't try to do anything at all then." After a while appellant came and unlocked the cell and said, "`Come on, let's get out of here before it comes daylight, before the day man comes on.' I was crying, and he says, `Don't tell any of them that we had you locked up, or that we turned the key on you;' and he says to us, `Why didn't you girls say you were under age, and we couldn't have locked you up.' He says, `Don't tell any one we had the key turned on you;' and when we were going out, neither one of them wanted to take the suit case, and they were trying to get me to take a drink of whisky." "He told us not to go back to the Brazil Hotel, and he said, `We don't want you to go back there any more.'" "He wanted us to get on the morning train and leave town."

The two men then took the two girls back toward the hotel. This was between 4 and 5 o'clock in the morning, and they passed a restaurant, and appellant invited them to go in and have breakfast.

"He asked me there in the restaurant if I was going to come across, and he said, if I would, to meet him down on the corner and he would give me some money. He wanted me to meet him to-morrow night, ant. I told him I didn't want to meet him, nor I didn't want any of his money. I told him I didn't want anything to do with him."

The four ate breakfast together In the restaurant, and the two men then took the two girls back to the hotel and left them there. The testimony of Edna Young corroborates in a large measure the testimony of the prosecutrix concerning the assault. Upon the cross-examination of these two girls, it developed that the prosecutrix and her cousin left their homes and parents in St. Louis, Mo., about four years prior to this occurrence, and went to Montana. The prosecutrix was then about 14 years of age and her cousin was 15. They worked in Montana on a ranch riding horses for six months. Afterwards they traveled two seasons with the 101 Wild West show and two seasons with Buffalo Bill's Wild West show, riding bucking bronchos. During those four years they had traveled over a large part of the United States, but were not able to give an accurate account of their whereabouts, or for whom they worked, when they were not with the show. The girls had not seen their parents since leaving home four years before, and made no effort to see their parents after leaving home, although they had passed through St. Louis on several different occasions, and on two or three different occasions remained in the city for several days; that they came to De Soto "because we wanted to come."

John Brazil, the hotel keeper, testified concerning the arrest at midnight, and that he saw the girls no more until the next morning at about 5 o'clock, at which time the appellant and Norris brought them back to the hotel. This witness testified:

"I asked the girls if the men had laid hands of them. Q. What did they say? A. They said the men had hugged and kissed them."

Mrs. John Brazil heard the two men bring the girls back to the hotel. She testified as follows:

"What was said by either Norris or Fleming or the girls in the presence of all of you? A. Well, all I heard in the presence of Fleming was: My husband asked the girls if they hurt them, and before they had time to answer Norris said, `We didn't harm the girls;' and one of the girls spoke up and...