State v. Forshee

• Decision Date: 20 November 1906
• Citation: 97 S.W. 933,199 Mo. 142
• Parties: STATE v. FORSHEE.
• Court: Missouri Supreme Court

97 S.W. 933

199 Mo. 142

STATE v. FORSHEE.

Supreme Court of Missouri, Division No. 2.

November 20, 1906.

1. CRIMINAL LAW—EVIDENCE—DECLARATIONS OF CO-CONSPIRATORS.

Testimony is not admissible, in a prosecution for the rape of an elderly woman, of statements made by an alleged co-conspirator several hours after the commission of the offense, as to his having had intercourse with some old woman, though such statement was made in the presence of defendant.

2. RAPE — PENETRATION — EVIDENCE — SUFFICIENCY.

A conviction of rape cannot be based on contradictory testimony of the prosecuting witness as to whether there was penetration.

Appeal from Circuit Court, St. Francois County; Robt. A. Anthony, Judge.

Martin Forshee was convicted of rape, and appeals. Reversed and remanded.

B. H. Boyer and J. N. Burks, for appellant. The Attorney General and N. T. Gentry, for the State.

GANTT, J.

On the 14th of April, 1904, the prosecuting attorney of St. Francois county began this prosecution by filing an information, duly verified, in the office of the clerk of the circuit court of said county, wherein he charged the defendant with rape on Emily Cowan, in said county, on the 6th day of December, 1903. The defendant was arrested and arraigned, and pleaded not guilty. On the 10th of August, 1904, he was put upon his trial and convicted and sentenced to the penitentiary. After unsuccessful motions for a new trial and in arrest of judgment, he appealed to this court.

The information is in proper form and we discover no error in the formal proceedings. The errors assigned relate to the alleged improper admission of testimony, and to the alleged insufficiency of the evidence to sustain the verdict.

1. The first contention for defendant is that the circuit court erred in admitting in evidence the statements of Willis, made in the presence of defendant, to the witness Rose at the Blue Goose saloon, after the perpetration of the alleged offense. It is admitted by the state that statements made by one of two or more alleged conspirators after the commission of the offense are not competent. It is the settled law of this state that declarations of a co-conspirator made after the common criminal enterprise has been accomplished, and merely narrative of past occurrences, are inadmissible against another conspirator. To be competent they must be either acts in themselves or accompany and explain acts done in pursuance of the concerted criminal purpose, during the pendency of the common criminal enterprise. State v. Melrose, 98 Mo. 594, 12 S. W. 250; State v. Hilderbrand, 105 Mo. 318, 16 S. W. 948; State v. Minton, 116 Mo., loc. cit. 615, 22 S. W. 808; State v. Brennan, 164 Mo., loc. cit. 509, 65 S. W. 325. But it is insisted by counsel for the state that the evidence of the witness Rose was admissible for the reasons: First, that the alleged statements of Willis, the co-conspirator, were made when defendant was present; and secondly, in impeachment...