State v. Gilbreath
| Decision Date | 19 November 1895 |
| Parties | The State v. Gilbreath, Appellant |
| Court | Missouri Supreme Court |
Appeal from Hickory Circuit Court. -- Hon. Argus Cox, Judge.
Reversed and remanded.
Upton & Skinker for appellant.
(1) Section 3480 does not make any carnal knowledge of a girl under fourteen years rape; the act is not rape, unless the girl is under twelve years of age; or, if the girl is over twelve and under fourteen, then the act must be committed by a married man. (2) If the construction put upon this section by the state is correct, then the infliction of the death penalty upon a youth who may be ensnared by an unchaste girl long past the age of puberty is a cruel and unusual punishment within the meaning of the constitution, and that part of the section is void. The court erred in instructing the jury that they might return a general verdict of guilty without assessing the punishment, and in preparing and giving to the jury a form of verdict finding the defendant guilty without assessing the punishment, before the jury had attempted to agree upon the punishment. Sec. 4230, R. S 1889, does not authorize such a practice. The law imposes on the jury the duty of assessing the punishment. Fooxe v. State, 7 Mo. 502. (3) The record shows no arraignment.
R. F. Walker, attorney general, and Morton Jourdan, assistant attorney general, for the state.
(1) The evidence supports the verdict. State v. Alfrey, 124 Mo. 393; State v. Richardson, 117 Mo. 585; State v. Moxley, 115 Mo. 644; State v. Sanford, 124 Mo. 484; State v. Banks, 118 Mo. 107. (2) The instructions correctly declare the law. The second paragraph of the fourth instruction is not error; it was authorized under R. S. 1889, sec. 4230. See State v. Tull, 119 Mo. 424; State v. Foster, 115 Mo. 541. (3) The record shows that defendant was arraigned. (4) The indictment is sufficient. State v. Houx, 109 Mo. 654; State v. Burrus, 29 S.W. 842.
At the May term, 1883, the grand jury of Camden county preferred the following indictment against the defendant:
In the circuit court for the county of Camden, May term, 1894.
He was duly arraigned, and a plea of not guilty entered. The cause was removed to Hickory county on his application for a change of venue. He was convicted at the November term, 1894, and was sentenced by the court to five years' imprisonment in the penitentiary.
The case depends almost entirely upon the evidence of the prosecutrix. The corroboration is exceedingly unsatisfactory. Neltha Coffey, the prosecutrix, lived with her parents on a farm in Camden county, not far from Mack's Creek. On the afternoon of the alleged rape her father was at work near the house, and her stepmother was in the yard. Neltha says she left the yard and started to gather some brush to make the fire for washing next day. She was eleven years and six months old at the time. No one sent her for the wood. Her story is that when she had reached a point about fifty yards from the house, and near a sycamore tree, that was shown to be from one hundred feet to sixty-three yards from the house, the defendant, who had hitched his horse to the tree, when she came to the brush pile seized her; that he then tied her hands behind her with a seagrass string, took an old ribbon from her hair and tied it around her neck, and then threw her down and raped her; that when he had consummated the offense he mounted his horse and rode off, gaily singing an obscene song, which she remembered so well that she repeated it verbatim to the jury.
The defendant was not yet grown.
The physician who examined her the next day, was introduced by the state and testified that there was no laceration of the parts. That the girl was abnormally developed. Her stepmother said she could discover nothing wrong, save she thought there was a slight enlargement of the parts. She says the offense was committed in a path that led from one settlement to another and about an hour before sundown on the twenty-ninth of May, 1893.
The court correctly defined the offense in its instructions, but, among others, gave the following instruction:
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