State v. Goodale

• Decision Date: 17 March 1908
• Parties: STATE v. GOODALE.
• Court: Missouri Supreme Court

109 S.W. 9

210 Mo. 275

STATE v. GOODALE.

Supreme Court of Missouri, Division No. 2.

March 17, 1908.

1. RAPE—INFORMATION—SUFFICIENCY.

An information, charging that "defendant unlawfully, violently and feloniously did make an assault in and upon" the prosecutrix, and her, the prosecutrix, "then and there unlawfully, forcibly, and against her will did ravish and carnally know," contains a sufficient charge of rape.

2. INDICTMENT AND INFORMATION—JOINDER OF COUNTS AND ELECTION.

There was no error in joining in an information two counts, one for rape, the other for incest, where they both related to the same transaction, nor was the state required to elect, it having the right to go to the jury on the different phases of the evidence.

3. RAPE—WEIGHT OF EVIDENCE.

While it is the law that a conviction for rape may be sustained upon the uncorroborated evidence of the outraged female, it is nevertheless equally well settled that the appellate court will closely scrutinize the testimony upon which the conviction was obtained, and if it appears incredible and too unsubstantial will reverse the judgment.

4. SAME — EVIDENCE — CONDUCT AND COMPLAINTS OF FEMALE.

In a prosecution for rape, a concealment of the injury for any considerable time after the woman has had an opportunity to complain, and a failure on her part to make an outcry where the act is committed within the probable hearing of other persons, are circumstances which will justify a strong, but not conclusive, inference that the act was with her consent, and not by force.

5. SAME—SUFFICIENCY OF EVIDENCE.

Evidence in a prosecution for rape examined, and held not to support a conviction.

Appeal from Circuit Court, Jackson County; Wm. H. Wallace, Judge.

Marshal S. Goodale was convicted of rape, and he appeals. Reversed and remanded.

Moore, Handy & Kimbrell, for appellant. The Attorney General and John Kennish, for the State.

GANTT, J.

At the January term, 1907, of the criminal court of Jackson county, the prosecuting attorney of said county filed in open court an information in two counts, charging the defendant, respectively, with the crimes of rape and incest. The prosecuting witness, upon and with whom the offenses were charged to have been committed, is Ella Brown, an unmarried female, and at that time between 14 and 15 years of age. The defendant was arraigned, entered a plea of not guilty, and the court, for want of time to try the cause, continued the same until the next regular term. At the April term, 1907, of said court the defendant filed a motion moving the court to require the prosecuting attorney to elect upon which of the counts he would proceed to trial. This motion was overruled by the court, and exceptions saved to such ruling. The same motion was made a second time at the close of all the evidence, and with the same result. The defendant was then put upon his trial, convicted of rape, and his punishment assessed by the jury at a term of seven years in the State Penitentiary. After filing motions for a new trial and in arrest, which were overruled by the court, and exceptions saved, judgment was pronounced and sentence passed in accordance with the verdict, from which judgment and sentence the defendant appealed to this court. At the trial the evidence disclosed substantially the following facts:

At the time of the alleged offense, the prosecuting witness, Ella Brown, was an unmarried female between 14 and 15 years of age, and was residing with her mother and sister in Colorado City, in the state of Colorado. Her mother, Comeletta Brown, was a widow, and worked by the day to secure a livelihood for herself and two children. Mrs. Catharine Cavanaugh is the mother of the defendant and Comeletta Brown, and was then living with their step-father, her second husband, in the city of Colorado City, about two blocks distant from the home of her said daughter. The two families were on the most intimate and friendly terms. The defendant, Marshal S. Goodale, is an uncle of the whole blood of the prosecuting witness, and was about 49 years of age at the date of the alleged offense. He had been married, but was separated from his wife, and the latter had obtained a divorce from him in the city of St. Louis, where she resided, shortly before the occurrence of the facts upon which this prosecution is based. He was a telegraph operator by trade, and had been engaged in that business in different parts of the country since he was 15 years of age. He had served in the United States Navy, in the Spanish-American war, and afterwards in the land forces as a sergeant of the signal corps in the Philippine Islands. He received his discharge from the army in 1904, and again resumed his trade as telegraph operator in the employment of a railroad company in Oakland, Cal. About the 28th of July, 1906, the defendant went to Colorado City to visit his mother, sister, and their families. During his stay he was on the most friendly and intimate terms with his relatives at that place, at one time having made a trip with the prosecuting witness to the city of Denver, where they remained overnight at the hotel, sleeping in separate beds in the same room. No complaint by the prosecutrix or her mother is made against the defendant for any misconduct or impropriety on this trip. After the defendant had been in Colorado about two weeks he was preparing to leave to make a visit to his sisters and their families at Bolivar, Mo., and to other relatives and acquaintances in the city of St. Louis. It was suggested that the prosecutrix accompany him on this trip, and it was finally agreed that she should do so. Accordingly, on the 13th of August, 1906, the defendant and the prosecutrix left Colorado for the trip to Missouri. They arrived at Kansas City the evening of the next day after the only daily train from that point to Bolivar had departed, and it became necessary for them to remain in Kansas City overnight, and until they could take the train the next morning at 10 o'clock for their destination. They took lodging at Hotel Convention. The defendant registered under the name of Marshal S. Goodale and daughter, and they were assigned to a double room containing two beds. After getting their supper, the defendant and the prosecutrix went out upon the street and listened for a time to the Salvation Army, and then retired to their room. The prosecutrix testified, with much minuteness of detail, that after they had returned to their room at the hotel the defendant ravished her. The defendant, on the other hand, testified that after returning to their room they retired and slept until the next morning, and denied that any of the occurrences had taken place during the night, as testified to by the prosecutrix. After breakfast at the hotel, they went to the depot, took their train for Bolivar, at which place they remained, visiting their relatives for a period of from 10 days to 2 weeks. They then went from Bolivar to St. Louis and remained at the latter place about the same length of time visiting relatives, after which they returned together to the home of the prosecutrix in the state of Colorado. During the time intervening between the time they stopped at Hotel Convention and their return to Colorado, the prosecutrix had made no complaint whatever as to any mistreatment or misconduct toward her on the part of the defendant, but she and her mother both testified that on the second night after her return she then communicated to her mother the facts as to the defendant's conduct and crime when they remained overnight at the hotel in Kansas City. For about two weeks after their return to Colorado the relations between the defendant and his sister and family, including the prosecutrix, were as friendly and intimate as they had formerly been, the defendant having taken them to church and to the public parks and eating at his sister's home. There was evidence at the trial that the general reputation of the prosecutrix and her mother for virtue and chastity was not good in the community in which they lived, and defendant testified that he had been apprised of this fact before they made their trip to Missouri, and that he had talked with the prosecutrix on the subject on their return trip. Some weeks after their return the defendant talked with his sister upon this subject, and advised her to have her daughter examined by a physician, that she might know the truth in regard thereto, and he offered to pay the physician's charge for the examination. Up to that time the relations continued friendly between the brother and his sister and her family as before. The mother had the examination made, and the deposition of the physician who made the examination was taken by the defendant and read in evidence at the trial. Depositions were also taken by the defendant of witnesses who testified to specific acts of unchastity of the prosecutrix before her trip to Missouri with the defendant. This testimony, upon objection of the state, was stricken out by the court, to which action of the court the defendant excepted, and now complains on this appeal. The court submitted the case to the jury upon the first and second counts of the information, and the jury returned a verdict of guilty of rape upon the first count, as heretofore stated.

1. The first count in the information charged that "on August 14th, 1906, at the county of Jackson in this state, the defendant unlawfully, violently, and feloniously did make an assault in and upon one Ella Brown, and her, the said Ella Brown, then and there unlawfully, forcibly, and against her will feloniously did ravish and carnally know, against the peace and dignity of the state." The information contains a sufficient charge of rape. There was no error in joining the two counts, one for rape, the other for incest, as they both related to the same transaction. State v. Mallon, 75 Mo. 355; Owens v. State, 35 Tex. Cr. R. 345, 33 S. W. 875; Bishop's New ...