State v. Gilreath

• Citation: 267 S.W. 880
• Decision Date: 31 December 1924
• Docket Number: No. 25761.,25761.
• Parties: STATE v. GILREATH.
• Court: United States State Supreme Court of Missouri

267 S.W. 880

STATE v. GILREATH.

No. 25761.

Supreme Court of Missouri, Division No. 2.

December 31, 1924.

Appeal from Circuit Court, Saline County; R. M. Reynolds, Judge.

Jack Gilreath was convicted of assault with intent to carnally know and abuse a female child under 16 years of age, and he appeals. Affirmed.

James & Shook (Judge), Samuel Davis and Louis J. Rasse, all of Marshall, for appellant.

Jesse W. Barrett, Atty. Gen., and Harry L. Thomas, Sp. Asst. Atty. Gen., for the State.

HIGBEE, C.

The indictment, found May 24, 1923, charges that the defendant, on May 22, 1923, at the county of Saline, assaulted Alice Sampson, a female child under 16 years of age, with intent feloniously to unlawfully and carnally know and abuse. The defendant was tried, found guilty, and sentenced for a term of two years in the penitentiary in accordance with the verdict, and appealed.

The record proper shows that, on the day the case was set for trial, the defendant filed and the court overruled a motion to quash the indictment, an application for a continuance, and an application for a change of venue. These matters are not preserved in the bill of exceptions, and cannot be considered on appeal.

Alice Sampson, aged. 13, lived with her parents in the outskirts of Marshall, in Saline county. The defendant is a married man, aged 23, with two children. He is a relative of the prosecutrix, being her third or fourth cousin, and she had known him nearly all her life. He came with Sam Narron in the latter's automobile to the Sampson home at about 6:30 p. m., on May 22, 1923. After supper, at about 7:30, Narron took Mr. and Mrs. Sampson and Gilreath up town, leaving Alice in the house with her two sisters, aged about 1 and 4 years respectively. Alice Sampson testified: Gilreath returned to the house about 7:45 and entered the kitchen by the back door. I was washing dishes. He sat down and pulled me on his lap; put his hand under my dress, and told me "to let him." I said, "No, sir; I wasn't going to do it," and got away from him, when he caught me around the waist, threw me on the floor, took out his private parts, and got on top of me; he was on his knees right over me. He pulled up my dress, broke a string and tore my drawers, laid down on top of me, and put his private parts on my legs. I resisted all the time, trying to get up; told him to get up and kicked him, but he kept holding me down, saying he would lay there until he died if I didn't "let him." He finally got up. I heard something like the honk of a car, and he left in a minute or two and told me not to tell. He said he would leave his wife and take me; that he wanted a sweetheart. My father and mother returned in about 20 minutes after Gilreath left.

Mrs. Sampson testified she and her husband and Gilreath and Narron went up town about 7:30 p. m. in Narron's car, leaving Alice with her little sister and the baby, and that she and her husband returned in about an hour. Quoting her testimony:

"When I got home, Alice and the baby were crying, and I tried to get Alice to talk to me, and the more I talked to her the worse she cried.

"Q. What did she tell you had happened?

"Defendant's Counsel: We object to what she told her; it is not in the presence of this defendant. (Overruled and exception saved.)

"A. She said he had been there and insulted her and done wrong and partly tore her clothes off and showed me her clothes. She had her clothes on at the time; they were torn."

Witness here identified the clothes and the broken rubber strings. She further testified that after she had been home about 30 minutes Gilreath came to the door; her husband had gone to look for him. Witness told Gilreath what Alice had said, and he said he had not been there; he did not come in the house. On cross-examination:

"When Jack (Gilreath) came to the door, I accused him; that he had insulted my little girl. He said he didn't, and I said, `You are a dirty liar; you done it.' He says, `I never thine it,' and I says, `Don't you tell me you didn't; you low, degraded s_____ o_____ b_____, you did do it.' He never said nothing."

Virgil Bacon, a taxi driver, testified he cook defendant to within half a block of The Sampson house at about 8 p. m. of May 22; that he went back for him at about 8:25, blew his horn, and in three or four minutes defendant came up, and they returned to town and defendant got out at the barn. At about 10 p. m. defendant came to the barn and wanted witness to take him home that night, seven miles beyond Sweet Springs.

John Logsdon, sheriff, testified:

"On the morning of May 24, 2 had a conversation with Jack Gilreath, the defendant, in the jail. I asked him why he went back down to this house the night before, or the night he was there—that was two nights—after leaving there with these other people, and he says, Well, I don't know why I went back.' He said, To tell you the truth, I don't really know what I did do.' He also said he wanted to ace Mr. Sampson, the father of the little girl, and to tell him if he would drop this thing that he would pay him whatever he would ask, and I afterwards brought Mr. Sampson up there and he had a talk with him."

The defendant testified he went to Sampson's house about 8 p. m., or a little later, after dark; Alice and the two babies were there; he was looking for Mr. Sampson; that he sat in the road 10 or 15 minutes and went to the house 5 or 10 minutes; that he sat down and played with the baby, the 3 or 4 year old girl; that he did not touch Alice nor attempt to have sexual intercourse with her; that he went down again about 8:30 or 9 p. m., and saw Mrs. Sampson; met her at the door, and she said Mr. Sampson was not at home. She said 2 had insulted her little girl. 1: said, "I didn't." She said she would tell my wife, and 1 said, "All right," and walked off.

1. Every person who shall be convicted of rape, either by carnally knowing any female child under the age of 16 years, or by forcibly ravishing any woman of the age of 16 years or upward, shall suffer death or be imprisoned in the penitentiary for not less than two years in the discretion of the jury. Section 3247, R. S. 1919, as amended Laws of 1921, p. 284a. The punishment for an assault with intent to kill, or to do great bodily harm, or to commit any robbery, rape, burglary, manslaughter, or other felony, is provided by section 3263, H. S. 1919. The indictment is in the language of the statute and charges an assault with intent to carnally know a female child under the age of 16 years. State v. Riseling, 186 Mo. 521, 527, 85 S. W. 372.

2. Appellant assigns error in permitting Mrs. Sampson to testify to the declaration made to her by the prosecuting witness, because it was not made in the presence of the defendant. Alice Sampson testified her mother returned about 20 minutes after the defendant left the house, but this was a mere guess. According to the testimony of the other witnesses, Mrs. Sampson must have returned within a few minutes after the defendant's departure. But be that as it may, she found Alice and the baby crying; the more she talked to Alice the more she cried. Finally Alice said "he had been there, and insulted her and partly tore her clothes, and showed me her clothes; she had them on at the time." Evidently Alice was still under the influence of the assault made upon her. Considering her agitation, clearly there had been no time or opportunity for deliberation or for the fabrication of a story. The brutal outrage she had suffered was talking through her. Under these circumstances her statements to her mother were as natural and spontaneous as her crying. They were the "automatic and undesigned incidents" of the assault. 1 Wharton Law of Ey. § 259. The rule is thus stated in 22 C. J. 461:

"In order for a declaration to be admissible as a part of the res gestæ, it must be the spontaneous utterance of the mind while under the influence of the transaction; the test being, it has been said, whether the declaration was the facts talking through the party, or the party talking about the facts. The guaranty for truth is found in such a correlation between the statement and the fact of which it forms part as strongly tends to negative the suggestion of fabrication or invention, and a suspicion of afterthought will prevent the reception of the statement. The rule admitting spontaneous declarations meets the needs of justice when other evidence of the same fact cannot be procured, and the modern tendency is toward the extension of the rule. The result has been a very general recognition of spontaneity as a sufficient substitute for the requirement of contemporaneous connection, and the establishment of a rule to the effect that an unsworn statement is evidence of what it asserts, when it is so connected with the transaction as a whole that the utterance may fairly be regarded as an expression of feeling, forced from the declarant by the pressure of the circumstances under which it was made, rather than the narrative result of thought. Such a declaration may accompany or be contemporaneous with the act, condition, or other fact which forces it from the speaker, although, where a statement lacks the necessary element of spontaneity, it does not become admissible as part of the res gestæ merely because of the fact that it was made immediately after the occurrence to which it relates. On the other hand, the declaration may follow such act, condition, or fact, even by a considerable interval."

In 16 C. J. p. 574:

"* * * And where an act or declaration springs out of the transaction while the parties are still laboring under the excitement and strain of the circumstance, and at a time so near it as to preclude the idea of deliberation and fabrication, it is to be regarded as contemporaneous within the meaning of the rule. In determining what is admissible as part of the res gestæ, no distinction usually is, nor indeed can be, drawn between statements and...