State v. Hammontree
| Decision Date | 25 May 1915 |
| Docket Number | No: 18710.,: 18710. |
| Citation | 177 S.W. 367 |
| Parties | STATE v. HAMMONTREE. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Stoddard County; E. M. Dearing, Judge.
Robert Hammontree was convicted of statutory rape, and he appeals. Affirmed.
Defendant, tried in the circuit court of Stoddard county upon an information charging him with statutory rape, for that he had carnally known a female child under the age of 15 years, was convicted, and his punishment fixed by the jury at imprisonment in the penitentiary for the minimum period, to wit, 5 years. From this conviction after the usual procedure, he has appealed.
The offense is shown by the proof to have occurred on the 13th day of December, 1913, at a time when prosecutrix lacked but 28 days of being vested by statute with the right to consent to being deflowered, so far at least as concerns this identical charge. She resided in the country, and had come into the city of Dexter with her parents on the day aforesaid, inferably upon a shopping trip. There she met one Shelby Thompson, who induced her to go buggy riding with him. These two proceeded to a cemetery, called in the record the "Hagey Graveyard," where they got out of the buggy, went into the weeds, down in a little hollow, and there indulged in sexual intercourse. While so engaged defendant Hammontree appeared upon the scene and requested prosecutrix to have sexual intercourse with him. She refused, but according to her testimony the defendant subsequently accomplished by force that which she was unwilling to grant by favor, and by lying down on her and holding her hands, consummated with her a single act of intercourse. In the view we take of the points which we are compelled by the record to discuss, the sordid details of this act have no place here, and we need not cumber this opinion with them. Suffice it to say that, according to the view we are constrained to take of the acts of the prosecutrix as shown by her testimony, the intercourse with her by defendant was accomplished by a sort of mild coercion, not amounting in our view to rape by force, though she insists throughout that it was accomplished by force and not had with her consent.
After the alleged commission of the offense charged herein defendant fled, and was subsequently captured in the state of Texas. While being brought back, and after having reached the city of Dexter, he escaped from the officer and was recaptured only after some difficulty, and a long foot race.
The testimony of prosecutrix as to her age Is not specifically controverted by the defense, and upon this point she is corroborated by three other witnesses. There Is also corroboration of her testimony as to time and place and the presence of defendant thereat, though upon the question of the sexual intercourse there is no testimony except that of the prosecutrix, except in so far as an extrajudicial statement, alleged to have been made by defendant to a witness by the name of Greer, may serve to corroborate it. The defendant said to Greer that he and said Thompson "had made it up" that Thompson should bring the prosecutrix to the graveyard, and that defendant should catch them there in the act of intercourse, and thereby be armed with an argument in favor of prosecutrix's submission to defendant; that he did so catch them; the girl submitted to his embraces, and he had intercourse with her three times. Defendant further told this witness that he did not know the name of this girl, but that she lived in the country; and the proof shows that defendant was a stranger to the prosecutrix, and that the prosecutrix lived in the country. Defendant admitted having a conversation with the witness Greer, but contended in his testimony that the conversation had reference to a wholly different time, and to a different girl, one residing in the city of Dexter, and with whom defendant had long been intimate.
Good reputation was shown on behalf of defendant, and the court correctly instructed the jury thereon.
The proof showed flight, but the court did not instruct thereon. The facts warranted an instruction on flight, but since no complaint is made of this, and since if complaint were made, as such an instruction does not help, but on the contrary hurts, defendant, he could not be heard to complain of the failure of the court to instruct thereon.
Such further facts as are sufficient to a complete understanding of the points we are compelled to discuss will be found set forth in the opinion.
Henry S. Shaw, of Dexter, for appellant. John T. Barker, Atty. Gen., and Lee B. Ewing, Asst. Atty. Gen., for the State.
FARIS, P. J. (after stating the facts as above).
I. Defendant complains of instruction numbered 6 given by the court of his own motion. This instruction deals with extrajudicial statements which witnesses for the state testified were made by defendant. The instruction as given is an exact copy of the one approved in the case of State v. Tobie, 141 Mo. 547, 42 S. W. 1076, and in the case of State v. Nibarger, 255 Mo. 289, 164 S. W. 453. In the latter case, while refusing to regard the giving of this instruction as. reversible error, we yet took occasion to criticize both the form and the spirit of it. But as we have always heretofore refused to regard the giving of this instruction as error we see no reason to recede from our former view. Another reason for disallowing this contention here arises...
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... ... such as this, force is not an element of the crime charged ... and a showing of lack of consent on the part of the ... prosecutrix is not required. The instruction was properly ... refused. State v. Baker, 136 Mo. 74, 81, 37 S.W ... 810; State v. Hammontree (Mo. Sup.), 177 S.W. 367, ... 369; State v. Bowman, 278 Mo. 492, 213 S.W. 64, 65; ... State v. Gruber (Mo. Sup.), 285 S.W. 426, 428; ... State v. Hersh (Mo. Sup.), 296 S.W. 433, 436 ... Appellant ... further contends that the court erred in failing to instruct ... ...
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