State v. Hilsabeck

• Decision Date: 04 February 1896
• Court: Missouri Supreme Court
• Parties: STATE v. HILSABECK.

34 S.W. 38

132 Mo. 348

STATE v. HILSABECK.

Supreme Court of Missouri, Division No. 2.

February 4, 1896.

CRIMINAL LAW — CONTINUANCE — AMENDED APPLICATION — INSTRUCTIONS — IMPROPER REMARKS OF COUNSEL — EVIDENCE — OBJECTIONS — WITNESS — CREDIBILITY — ATTEMPT TO RAPE — SENTENCE — INDICTMENT — SIGNATURE.

1. Where a counter affidavit is made by the witness named in an application for a continuance, it may be received to controvert the truth of allegations made in the application respecting the affiant witness.

2. A continuance will not be granted merely to secure the attendance of an impeaching witness.

3. An application for a continuance, in a rape case, which alleges that, as to defendant, a desired witness would testify "that she often kept company with him, in girlhood and womanhood, and was often with him alone; that his conduct towards her was at all times, and under all circumstances, that of a gentleman towards a lady," — is insufficient.

4. An application for a continuance which alleges that a desired witness would testify that, at the town where defendant resided, he saw a young lady, who. he was afterwards told, was the prosecutrix, and she requested him to deposit in the post office a letter addressed to defendant, and this letter was believed to contain an exoneration of defendant, is insufficient.

5. It is exclusively in the discretion of the trial court to grant or to deny leave to file an amended application for a continuance.

6. An instruction that the jury are the sole judges of the credibility "of the witnesses," and will consider their character, manner on the stand, interest, relation to the parties, and probability of statements, as well as all circumstances in evidence, is not erroneous.

7. Exceptions must be saved to alleged improper remarks of the prosecuting attorney, and the remarks be preserved in the bill of exceptions, to render them available on appeal.

8. An objection to evidence as "incompetent and irrelevant" is too general.

9. If the court fail to instruct on a point claimed by defendant to be necessary, exceptions must be preserved in the bill of exceptions, to render it available on appeal.

10. Where the evidence established that defendant was 29 years old; a married man, with a wife and child; and that he attempted to ravish a girl not yet 15 years of age, — the maximum sentence, of 5 years' imprisonment, was properly imposed.

11. The word "Attest," written before the prosecuting attorney's signature to an indictment, is surplusage, and without effect.

Appeal from circuit court, Barton county; D. P. Stratton, Judge.

William Hilsabeck was indicted and tried for an attempt to commit rape. He was convicted, and sentenced to five years' imprisonment. From a judgment on the verdict, he appeals. Affirmed.

Cole & Burnett, for appellant. R. F. Walker, Atty. Gen., and H. H. Blanton, E. L. Moore, and M. T. January, for the State.

SHERWOOD, J.

For an attempt made on the 5th day of July, 1894, to ravish "Anonyma," a young girl, not quite 15 years of age, defendant was indicted in the county of Vernon, at the November term, 1894. In December, following, defendant requested and obtained a change of venue, and one was awarded to Barton county, where a trial resulted in his conviction, and sentence to the penitentiary for the term of five years, and he appeals to this court.

The record proper in this case has been made out very well, but the bill of exceptions (that is to say, that portion which contains the evidence) has been typewritten with a machine so old and decrepit that what purport to be the letters stagger across the page in zigzag courses, frequently overlapping each other, and frequently altogether omitted; and the result is that the evidence is almost illegible, and has required much time and pains to decipher it. The testimony of the prosecutrix is to the effect that on the 3d of July, 1894, she met the defendant standing in front of the barber shop where he was employed, and, as she passed, he bowed to her; that on the 4th she took a walk with defendant, and again, on the 5th, in the afternoon, they walked together out in the northeast part of Nevada, to a commons, and arranged to go again after supper; that about 6:30 she rode horseback to the commons, where she met defendant, who assisted her from her horse; that she took her riding skirt, and spread it upon the ground, and they both sat down upon it; that shortly thereafter she took off her hat. The place where they sat down seems to have been somewhat lower, though not a great deal, than the surrounding ground. The prosecutrix testified that, after talking a few minutes, the defendant pushed her over upon her back, got upon her, and attempted to rape her; that she resisted him, and attempted to scream; that defendant attempted to get her clothes up, but she held them; that he only desisted when Wallace and his son and Strader came up. Anderson testified he was in the barber shop where defendant was employed the evening of the 5th, and that defendant told him he had an engagement with a girl; that he didn't know whether there was anything in it, or not, but he was going to try it. Old man Wallace, his son, Alfred Wallace, and Tom Strader testified that they came upon defendant and prosecutrix that evening upon a low place in the commons; that, when about 50 yards away, they heard prosecutrix crying; that they quickened their pace, and when they got nearer they saw defendant on top of the prosecutrix, who was resisting him; that, when defendant heard them, he rolled off of her; that his pants were unbuttoned, and his privates in full view; that he got up, and buttoned up his pants; that defendant began cursing them, and old man Wallace knocked him down; that they attempted to catch him, but he ran away, leaving his hat, which they afterwards took to the sheriff. Old man Wallace took the girl home, and reported the matter to the sheriff and the city marshal. Several witnesses were introduced by defendant, who testified that in their opinion, and, some of them, from their points of view, defendant and the prosecutrix could easily have been seen from various houses in the neighborhood of the locality of the alleged assault. And the testimony of some of the witnesses for the prosecution seems to coincide with those for the defense on this point. A number of witnesses saw defendant and the prosecutrix sitting together on the commons that evening. None of them, however, testify that they saw them thus sitting when the attempt was made which caused defendant's arrest. Long, for defendant (who "did not work only when he felt like it"), professes to have laid down within 20 feet of where defendant and the prosecutrix came up and sat down to talk, and saw nothing wrong with the couple as two men were seen advancing from the east, when he left his resting place, and returned to town. Underwood, another witness for defendant, saw, from his porch, a half a quarter distant, defendant and the prosecutrix seat themselves, and then after a few minutes, when he was standing by his fence, he saw three men come in from the north, and advance to the place where defendant and prosecutrix were. Then, for the first time, he heard talking, and it was then about dusk. The defendant and prosecutrix had been seated about 15 minutes when these men came up, and they were walking pretty fast. In his own behalf, defendant testified. His testimony did not differ materially from that of the prosecutrix, except on the point of his attempted violence, etc.

1. The first ground of contention on behalf of defendant is that his application for a continuance should have been granted. One of the...