State v. Huff

• Decision Date: 26 March 1901
• Parties: STATE v. HUFF.
• Court: Missouri Supreme Court

61 S.W. 900

161 Mo. 459

STATE v. HUFF.

Supreme Court of Missouri, Division No. 2.

March 26, 1901.

RAPE—SUFFICIENCY OF EVIDENCE—APPEAL— GENERAL OBJECTION—SUBPŒNA— PROCESS—RETURN.

1. Prosecuting witness in a trial for rape testified that accused, her stepfather, came home at night and ordered her and her sister, a child of 9, to dress and mount a horse with him to go to the nearby village, where he intended to shoot her mother and sister; that after proceeding part way he returned and took witness into the barn; that afterwards he took her into the house and sent her and her sister upstairs, and shortly after, while they were screaming, by means of threats, and in the presence of her sister, ravished witness; that he had done the same in the barn; that the next day she made complaint; that a month later she was married, and the next day she and her husband started overland in a wagon, and were later joined by accused, who traveled with them in the wagon for some time, and finally she wrote to the sheriff, and he came and arrested accused. Witness contradicted herself in many ways. The alleged offense occurred in a thickly-peopled village, and next door to an inhabited house. Two neighbors testified to hearing screams of children on the night in question, but neither investigated the matter. Physical examination of prosecuting witness by physicians revealed that the crime might have been committed. The witness was impeached by several witnesses, most of them relatives of accused, who testified that she stated to them that accused had never committed the crime, but that her sister had concocted the scheme to cause a separation between accused and their mother. An attorney testified that she had admitted to him that accused had not committed the offense. Held, that a conviction was not justified.

2. Testimony of prosecuting witness that a person "representing accused" attempted to induce her not to testify is incompetent, as being a legal conclusion and hearsay.

3. Where evidence is incompetent and hearsay, its admission can be reviewed on appeal under general objections.

4. A subpœna is inadmissible where its return shows service in a county in another state.

5. A return of service of a subpœna signed by a special deputy in his own name is invalid.

6. Where an attachment for contempt was issued against a witness on the 14th of the month, and on the 16th, the day of the trial, the sheriff made a return of due and diligent search, not only in his own county, but on the very same day in another county, the return, failing to show that the sheriff went at least once to the residence of the witness, is not sufficient to show any real effort on the part of the state to obtain the witness mentioned in the attachment.

7. Testimony of a witness that he saw a certain state's witness at his home a few days before the trial is admissible to show the state's lack of diligence in securing his attendance.

8. Accused not being charged with eloigning the prosecuting witness, it was error to admit evidence that accused owned the team and wagon in which the witness left the neighborhood.

9. It is irrelevant to show whether accused or his wife owned the farm occupied by them, how much it sold for, and whether the wife had not mortgaged her property to secure the fees of accused's counsel.

10. Evidence that a prosecuting witness was made to leave the neighborhood by persons other than accused is incompetent.

11. Conceding that it was competent for prosecuting witness to testify that she was made to leave the neighborhood, it was error to exclude further questions eliciting the names of those who made her go.

12. Evidence of prosecuting witness that she made no objection to being placed under bond for her appearance at court, and that she was glad, because she was afraid to leave the jail, is incompetent.

13. Objection cannot be considered on appeal that the jury were not instructed as to certain points, there being no exception saved to such failure to instruct.

Gantt, J., dissenting. See 61 S. W. 1104.

Appeal from circuit court, Pike county; D. H. Eby, Judge.

William Huff was convicted of rape, and appeals. Reversed.

James O. Barrow and Pearson & Pearson, for appellant. Sam B. Jeffries, Atty. Gen., and Geo. W. Emerson, for the State.

SHERWOOD, P. J.

Ten years in the penitentiary was the term of punishment which the jury awarded to defendant on a charge of having ravished his stepdaughter Hattie Kent, a girl of 15 years of age, on the 6th day of October, 1898, and judgment went according to the verdict. One of the grounds of the motion for a new trial is that there is no evidence to support the verdict. The evidence has, in consequence, been most thoroughly examined. Numerous errors are also assigned as reasons for reversing the judgment rendered. The statements made by counsel on either side are far from satisfactory,—especially so because of the assertion that "there is no evidence," etc. Adopting such portions of defendant's abstract as will answer my purpose, I will make such additions thereto and emendations thereof as may be requisite.

Hattie Hopkins, the prosecutrix, testified: "My father's name was Richard Kent. He died April 9, 1894, and my mother married the defendant about three years ago. My mother had four children by her first marriage, and the defendant had three by his first marriage. Their names are Frankie, who is nine years old, Johnnie, and Lena Huff. On the night this offense was alleged to have been committed, I was at my home, in Prairieville, with my little brother Fadie, twelve years old, and the defendant's three children. We were all downstairs, in the front room. My mother and older sister were at the drug store in Eolia, about one mile south from Prairieville. We were all asleep in the front room downstairs; that is, myself, Frankie Huff, Johnnie Huff, Lena Huff, and Fadie Kent. Between nine and ten o'clock defendant came and broke a window. That waked me, and I hollowed to Frankie to get up and see who it was. She let him in. He made Frankie and I dress and get on the horse with him, saying he was going down to the store and kill my sister and mother. We went down part of the way to Eolia; then turned and came back. He put the little girl down and told her to run into the house. I jumped off the horse and started to run, but he held me and said if I did not stay there he would kill me. The horse was left in the yard that night. He took me around to the barn. Then we went to the house and he drew his pistol on us, told us if we did not go upstairs he would kill us, and went on upstairs. I went upstairs. He stayed downstairs. Frankie and I were both in the front room upstairs. In about one-half hour he came upstairs in his underclothes. His little girl and myself were screaming, and he took me into the back room and threw me down. He got all my undergarments off, but one foot, and forced my legs apart. Frankie came in and begged her papa not to do me that way, and hollowed for Dick Henry, the nearest neighbor, and he drawed his pistol on her and made her go back into the front room." Prosecutrix then stated, in response to the prosecuting attorney's questions: "Well, he threw me down and fucked me." The two last words the prosecutrix repeated at the instance of the prosecutor. "The next morning I told my mother and sister Oney, who returned that morning, and we went over to Mr. Smith's and had him arrested. With reference to the time we were at the barn, he tore my underclothes off of me before he threw me down; then he threw me down and did the same to me he did upstairs." This answer was made to a direct question by the state's attorney as to what defendant did at the barn, and this was permitted notwithstanding the witness had exhibited no unwillingness to testify, and at the barn she said she was screaming, and defendant threatened her with the "knucks" and pistol. Such direct and leading questions as that just mentioned are a striking feature of this case, all through the examination in chief of prosecutrix. Thus: "Did he say anything else he was going to do, that you remember of?" "Then what was done?" "Where did you go then?" "What did he do when he came up there?" "What did he do then?" "State what he did then." Such questions were vainly objected to by defendant as leading and suggestive; the court remarking in overruling the objections, "What the defendant did or said at the time would be competent," which was not the ground of the objections made, but that the witness was being led step by step, and not allowed to tell her own story in her own way. The prosecutrix then stated that she remained at Mr. Smith's that day, then went to Bowling Green, and then to Sheriff Hopke's, where she remained about 20 days, when her mother went up after her and sent her home; that after reaching home she went to William Huff's, father of defendant, and from there she went with her mother and him to Troy, to R. H. Norton's office; that she was married to Hopkins 1st day of November, 1898. "Last saw Hopkins at Hopke's, the sheriff's. Don't know where Hopkins is now. Was married at Jim Huff's, defendant's uncle." Was examined by three doctors three or four days after alleged offense.

On cross-examination witness testified: Oney never had lived with the family since defendant married her mother. She was living out. Never lived as a member of the family "since her and him has been married." But she testifies: That Oney did come with the family from their old residence when they moved from there to within a mile and a half of Eolia, defendant's present place of residence, and had just gotten back home when the supposed offense was perpetrated. That "my stepfather and her [Oney] never got along good together." That stepfather was never kind and good to witness; mistreated her, and she did not like him. Dick Henry's house, a frame, adjoined where defendant and his family lived. Rock road in...