State v. Hibler

• Decision Date: 09 May 1899
• Parties: STATE v. HIBLER.
• Court: Missouri Supreme Court

51 S.W. 85

149 Mo. 478

STATE v. HIBLER.

Supreme Court of Missouri, Division No. 2.

May 9, 1899.

CRIMINAL LAW — ARGUMENT TO JURY — RAPE — REVIEW — INSTRUCTIONS.

1. In a prosecution for rape, a statement in the argument to the jury, wherein the state's attorney refers to "the hellish deed perpetrated by that young devil on that girl," where rebuked by the court, was not prejudicial error.

2. Where the evidence of prosecutrix showed that she had been forcibly ravished, and defendant, as a witness, admitted the sexual intercourse, but denied the use of force, though he had admitted the rape when charged with it by the mother of prosecutrix, shortly after the offense, a conviction will not be disturbed where the trial court has approved the verdict.

3. In a prosecution for rape, an instruction given at the request of the state, which calls the jury's attention to special facts brought out by the evidence as bearing on the question whether the offense was committed, though possibly objectionable for singling out specific facts, was not ground for reversal where the facts particularized were the weak points in the state's case, and chiefly relied on by the defense, as shown by an instruction requested by the defense, which called attention to such facts as material to the defense.

4. The appellate court will not reverse a conviction because of the insufficiency of the evidence where there is substantial evidence of defendant's guilt.

Appeal from circuit court, Chariton county; W. W. Rucker, Judge.

Nolan Hibler was convicted of rape, and he appeals. Affirmed.

The language used by one of the counsel for the state in his argument to the jury was as follows: "Gentlemen of the jury, you heard the testimony about this. I know my friend Mr. Dempsey, while he was making a terrible case against the road overseer of that district, — and I believe it is about the only defense that I saw in the case, — he was giving the road overseer the very devil, and I have no doubt if we had him here and tried him that you would convict him; but what had the county road overseer of the bad roads of that community to do with the hellish deed perpetrated by that young devil upon that girl?" Counsel for defendant objected to the statement, and asked that counsel be reprimanded. The court said that counsel should "indulge in no personalities with reference to the defendant. [To the stenographer]: Note that the court condemns the remark, and rebukes the counsel."

Dempsey & O'Shaughnessy, for appellant. Edward C. Crow, Atty. Gen., and Sam. B. Jeffries, Asst. Atty. Gen., for the State.

BURGESS, J.

At the July term, 1898, of the circuit court of Chariton county defendant was convicted of rape, alleged to have been committed on one Imogene Sublett, at said county, on the 12th day of June, 1898, and his punishment fixed at five years' imprisonment in the penitentiary. He appeals.

The defendant and Imogene Sublett were about the same age, — 20 years, — lived about three-quarters of a mile apart, and had attended the same school. The families of which they are members were upon intimate terms, and the younger members especially exchanged visits. Defendant had never called upon Imogene but once, however, before the evening of July 12, 1898. In pursuance of an arrangement of two weeks' standing, she, in company with the defendant, left her home in a two-horse buggy on the evening of July 12, 1898, to go to Zion Church, about 3½ miles distant, to attend "children exercises." They were late getting there, and when they did arrive the exercises had begun, and the church crowded, so they, being unable to get seats, started back home. She testified that when they left the church two other buggies turned around, and left also, traveling the same road, one going east in front of them for a mile until they came to a cross road, when they turned north, while the buggy in front continued eastward; that, as soon as they turned north, defendant put his arm in back of her, and when she requested him to remove it he refused, but talked about the lascivious conduct of other girls. She requested him several times to "shut his mouth," but he persisted in his unseemly talk and conduct; and when she told him, if he did not desist, that she would jump out of the buggy, he told her if she did he would get out also. When they were within three-quarters of a mile from her house, he stopped his team, and assaulted her, whereupon she started to get out of the buggy, but he threw his arms around her, and pulled her back in. Some one was then heard to be approaching in the rear, which startled defendant, and caused him to drive on up to and past the Sublett residence about three-fourths of a mile, across Salt creek and South Branch Bridge, where he stopped again. She screamed, and tried to get away from him. Hearing another buggy coming, he started the team, and drove into a field about three-fourths of a mile away, where he stopped his team for a third time, and continued his assault upon her. She screamed, fought, and resisted as best she could, but he succeeded in accomplishing his purpose. While on the way home she told him he had just as well kill her, and throw her in the ditch. He told her if she would not say anything about it he would marry her. She replied, "No, I won't do it, narry a time." She was not out of the buggy from the time they started to the church until they returned to the Sublett home, about 11 o'clock that night, and was on the seat all the time. When she reached home, all the members of the family had retired except her sister Dollie. She was excited, and had been crying. Her sister tried to get her to tell what was the matter with her, but she told her that she would not do so that night, but would do so in the morning. She slept none that night, but cried continuously. Her hat and clothing were badly soiled, her underclothing torn and bloody, her private parts lacerated, and her person sore, so that she could not do anything for about a week. The next morning, early, after the assault, she told her mother and sister how she had been treated by defendant the night before. She did not at that...