State v. Fulkerson

• Citation: 97 Mo. App. 599,71 S.W. 704
• Parties: STATE v. FULKERSON.
• Decision Date: 05 January 1903
• Court: Court of Appeal of Missouri (US)

71 S.W. 704

97 Mo. App. 599

STATE v. FULKERSON.

Court of Appeals at Kansas City, Missouri.

January 5, 1903.

ASSAULT ON FEMALE—INDICTMENT—ACTS CONSTITUTING—EVIDENCE.

1. Evidence in a prosecution for assault on a female examined, and held to make a question for the jury.

2. Where a man, who was in a house with a young woman with whom he was not acquainted, after some conversation with her, put his hand on the door of the room in which they were, and, on her starting to run out, put his hand on her arm, and on her jerking away followed her through two rooms and partly upstairs, such acts constituted an assault.

3. Where, in a prosecution for assault on a female, she testified that the morning after the assault she was shown a photograph, which she was told represented defendant, and recognized it as the picture of her assailant, but had not been able to identify him by name before, though she had seen him several years before, when he wore a full beard, which was shaved off when the assault was made, the reception of the picture in evidence was not error.

4. An indictment for assault was not invalid because not closing with the words, "and so the grand jurors aforesaid, upon their oaths aforesaid, do present and charge that he the said F., her, the said M., did unlawfully assault, against the peace and dignity of the state."

5. An indictment charging that "F. on the 20th day of May, 1900, at J. county, Missouri, did then and there unlawfully assault one M., by then and there placing his hand upon and catching hold of said M., with the intention and for a lustful and immoral purpose, and against the will of the said M., against the peace and dignity of the state," sufficiently states the nature and cause of the accusation.

On Rehearing.

6. In an indictment charging an assault "with the intention and for a lustful and immoral purpose," the words declaring the intent and purpose are merely surplusage, and defendant may be convicted of the assault though such intent and purpose are not found.

Appeal from circuit court, Johnson county; Wm. L. Jarrott, Judge.

John H. Fulkerson was convicted of an assault, and appeals. Affirmed.

A. B. Logan and John Welborn, for appellant. J. W. Suddath, for the State.

BROADDUS, J.

The defendant was indicted and convicted for an assault upon the person of a female named Nettie I. Madden. A brief review of the evidence shows that the prosecutrix on Sunday, May 20, 1900, the day on which the offense is charged to have been committed, was a domestic servant in the family of one Wm. R. Rice, who resided about one and one-fourth miles south and three-fourths of a mile east of the village of Columbus, Johnson county, Mo.; that the defendant lived with his mother, two and three-fourths miles south and three-fourths of a mile east of said village. The prosecutrix testified that on the day named, at about a quarter to 12 o'clock m., while she was alone in the Rice dwelling, a man came to the house and knocked at the front door; that she answered the knock, whereupon the said man asked for Charley Rice, a son of Wm. R. Rice; that she told him that said Charley Rice had gone to church, and that thereupon he asked for a drink of water, at which time she left the front door, and started to the kitchen, passing through several rooms, the man following; that when she got into the kitchen he asked her if she was not the young lady who had been staying there, and she told him "No"; that he then asked her if she was not a grass widow, when she again answered "No," upon which he walked to the door and asked her if she knew him, and, when she answered that she did not, he said he would tell her his name if she would not tell any one; that he then told her, amongst other things, after asking her if she knew Dr. Morrow, that the latter had sent him down to get acquainted with her; that she told him she did not see why Dr. Morrow had sent him down for that purpose, at which he laughed, and went and put his hand on the door, when she started to run out of the room; that he then put his left hand over the door, and placed his right hand on her arm, whereupon she jerked away and ran through the dining room and hall, and up the stairs, he following until he got upon about the third step of the stairs,—she being then on the top step,—when he called out and said he had something to say to her; that she then ran into a room and shut the door. The defendant denied that he was the person who committed the assault, and introduced many witnesses to prove an alibi. The prosecutrix did not recognize the person at the time of the assault as that of the defendant, but she stated that she thought she had seen a man who acted like such person, and, when confronted with defendant at the trial, unhesitatingly and positively identified him as the man who had made the assault. She stated that she had seen him in August, 1898 or 1899, when he wore a full beard (the defendant was clean-shaven at the time of the assault), at which time he had come to her father's house, hunting a mad dog, on which occasion she had given him a drink of water. She stated, also, that on the morning following the assault, when she was shown a photograph of defendant, she became positive that he was her assailant, and that she was informed when Rice came home from church on the Sunday named that the defendant was clean-shaven. This photograph, after being identified by the prosecutrix as a true picture of the person who assaulted her, was introduced as evidence, and inspected by the jury. It was also sought to identify the defendant as the wrongdoer by a description of the clothes he wore, of the horse he rode, and the direction he was seen going on the day named; the prosecutrix stating that the person who assaulted her wore a light gray suit, a "lay-down" color, red necktie, and a brown hat, and tan-colored shoes. On cross-examination she added to this description a white starched shirt and a vest of a light color. The defendant introduced a number of witnesses, some of them members of his own family, who testified that on said Sunday he wore a black coat, light trousers, a white hat, a red necktie, and no vest. Two witnesses for the state testified that defendant at said time was wearing a light-colored suit. All agree, however, that he had on tan-colored shoes. One witness (Samuel Burge) testified that in about a week from the day of the assault he saw defendant coming out of the house of Dr. Morrow, and that he met him where, or near where, they had met on the Sunday before, and defendant said to him, "If the Rices ask you how I was dressed, tell them you don't remember." It was shown that in order to go home from Columbus, where it is admitted defendant was on the Sunday in question a short time before the assault was made upon Miss Madden, he would have to pass by the said Rice place; but it was also shown that there was a road which branched off of said other road before reaching the Rice place, which led by what the witnesses called the "Neal Doggett Place." The defendant testified that he took this latter road, as he was in quest of a fishing party at Blackwater creek, about four miles further south, and consequently he could not have been at the Rice place. He was corroborated in this by several witnesses who testified that they saw him on said road. And there were other circumstances introduced which very much strengthen this evidence. Several witnesses for the state, however, say that they saw him after he had passed the road that led by Doggett's, going in the direction that led by the Rice place. The evidence showed that the defendant had a brother, Reuben, who resembled him greatly in appearance, and that one of them was often mistaken for the other. It was also shown that they were both together on the Sunday in question, and that both were riding sorrel horses very much alike, only that the one ridden by defendant was a pacing horse, and the other was not. Reuben states that he went from Columbus home on that day, riding his own horse, and passing by the Rice place;...