State v. Hutchens

• Court: Missouri Supreme Court
• Writing for the Court: Bailey
• Citation: State v. Hutchens, 271 S.W. 525, 309 Mo. 103 (Mo. 1925)
• Decision Date: 19 March 1925
• Docket Number: No. 26039.,26039.
• Parties: STATE v. HUTCHENS.

271 S.W. 525

STATE v. HUTCHENS.

No. 26039.

Supreme Court of Missouri, Division No. 2.

March 19, 1925.

Motion for Rehearing Overruled. April 9, 1925.

Appeal from Circuit Court, St. Charles County; E. B. Woolfolk, Judge.

Frank Hutchens was convicted of statutory rape, and he apeals. Affirmed.

See, also, 253 S. W. 363.

D. E. Killam and John L. Burns, both of Troy, B. H: Doer, and Emil P. Rosenberger, of St. Louis, for appellant.

Jesse W. Barrett, Atty. Gen., and Ellison A. Poulton, Asst. Atty. Gen., for the State.

Statement.

BAILEY, C.

On August 30, 1922, the prosecuting attorney of Lincoln county, Mo., filed in the circuit court of said county a verified information which, without caption and verification, reads as follows:

"Derwood E. Williams, prosecuting attorney within and for the county of Lincoln and state of Missouri, acting herein under his oath of office and upon his knowledge, information, and belief gives the court to understand and be informed that on the 26th day of June, A. D. 1922, at the county of Lincoln and state of Missouri, one Frank Hutchens did then and there, in and upon one Mary Rehg, a female child under the age of 16 years, to wit, of tie age of 15 years, unlawfully and feloniously did make an assault, and her, the said Mary Rehg, then and there unlawfully and feloniously did carnally know and abuse, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state. Derwood E. Williams, Prosecuting Attorney of Lincoln County, Missouri."

On September 11, 1922, appellant waived formal arraignment and entered a plea of not guilty. On December 13, 1922, at the instance of defendant, the venue was changed, and the cause sent to the circuit court of St. Charles county, Mo., where appellant, on March 19, 1923, filed a motion to quash the information, which was overruled. Defendant's plea of not guilty having been withdrawn, he was rearraigned on March 19, 1923, and again entered a plea of not guilty. The case was thereafter tried in St. Charles county before a jury, and on November 2, 1923, the following verdict was returned in said cause:

"We, the jury, find the defendant guilty as charged in the information, and we assess his punishment at 20 years' imprisonment in the penitentiary.

                        "Edw. H. Richmers, Foreman."
                

Thereafter, in due time, defendant filed motions for a new trial and in arrest of judgment, both of which were overruled. He then filed herein a motion for the reduction of punishment, which was overruled. Thereafter, on November 26, 1923, defendant having been granted allocution, judgment was rendered and sentence passed upon him in conformity with the terms of the verdict aforesaid. On the same day, he was granted an appeal to this court.

There is very little difference between the respective statements of counsel as to the material facts in the case. The transcript on file contains over 700 pages of typewritten testimony, given by 40 to 50 witnesses. As the statement of the case made by counsel for respondent, contains some material matters not mentioned in appellant's brief, and believing the statement to be substantially correct in regard to the general facts of the case, we adopt the same, as follows:

State's evidence:

Mary Rehg was born May 31, 1907. In addition to the testimony of her mother and several other witnesses who personally knew the date, the church register of the German Evangelical congregation, of which her parents were members, was introduced to show the date of birth.

On the afternoon of the 26th day of June, 1922, the prosecutrix arranged with one Charley Cox to accompany him to a party at the home of one Doug Morris, about 3 miles from her home; both places being in Lincoln county, Mo. After supper she, in company with Charley Cox, started to walk to the Morris home near Bristow. They went to Famous and from Famous to Davis, where they stopped, made a purchase in a store, and got directions how to find the Morris home from the proprietor, one Jim Owens. As they left the store they saw appellant. After having walked some distance they met appellant and Carl Norton, who directed them away from the right-hand side of a bridge and told them to go the other way. Very shortly they discovered they were on the wrong track, and retraced their steps and turned to the right from the bridge as they had been directed to do by Owens. Hutchens and Norton followed them until they reached the Doug Morris home. They arrived at the latter place about 8 o'clock in the evening and stayed there until about 11 o'clock, at which time the party ended. Appellant, Norton, and Lorton attended the party.

Prosecutrix and Cox were the last to leave the house and started back home by the same route they had traveled coming. The Morris home was on a hill, at the bottom of which was the home of one Broyles, near which there was a barbed wire gate. Appellant, Lorton, and Norton were at the gate when they arrived there and shoved Cox through. Appellant held prosecutrix at the gate and said: "By God, if you want through, crawl over or crawl under." He detained her 3 or 4 minutes, then opened the gate, and she walked through. Cox then took hold of her arm, and they walked through a field towards a railway track. About 250 yards from the gate Hutchens and Lorton walked up in front of prosecutrix and Cox, appellant saying: "Mary, this would be a nice night to f__________, wouldn't it?" The appellant and Norton pushed Cox on towards the railway track, and Lorton stayed with prosecutrix. After all the struggle she was capable of, she was thrown to the ground, and Lorton ravished her. He then got up and walked towards the railway track. She had gotten up and started there, when Frank Hutchens returned and said that he was "going to do the same G___________d d__________d thing Emmet done." She started to run, but appellant caught her, threw her to the ground, saying: "You had better keep your G__________d d___________d mouth shut if you don't know what's good for you." Lorton had torn the prosecutrix's drawers, and appellant laid them back, pushed aside a pad used because she was in her menstruation period and ravished her. She was unable to "holler" during either attack because both men placed their arms on her neck so that it was impossible for her to cry out.

After appellant and Lorton left she rejoined Cox and continued on home. Cox told the Norton boy to leave her alone, and he did. Appellant and the other two boys went on down the railway track together, and prosecutrix and Cox continued on home, both of them crying. Cox stayed there that night, sleeping on the porch, while she slept in the room her father and mother occupied. She made no complaint to any one at this time. Next morning she helped prepare breakfast, rode horseback to the pasture, and brought the stock up from there; afterwards she went to the field where her father was working and turned hay. Appellant and Lorton passed prosecutrix's house several times a day going to and from work. At the time of the assault, prosecutrix weighed between 115 and 120 pounds. During the week after the night of the assault appellant stated in the presence of several persons that he had "f______ Mary Rehg up there that night of the Doug Morris party and had turned her liver over."

Defendant's evidence:

Eleven witnesses for appellant testified that prosecutrix's reputation, in the community in which she lived, for morality and chastity, was bad. The morning after the alleged assault prosecutrix, upon bidding Cox goodby, said: "If you hear of any more dances, just let me know," and upon his replying, "All right," she said, "Don't forget." After appellant's arrest prosecutrix stated in the presence of three persons, "There would never have been anything to this if George Pressley hadn't told it." One Broyles testified that his house was near where the assault was alleged to have been made, and that he heard no noise of any kind upon the night in question.

Appellant's father, mother, and sister testified that they washed his clothes and underclothes after the night of the assault and found no evidence of blood or other stains upon them. The Saturday after the assault and before the arrest of the appellant, prosecutrix and appellant met in a store in Troy, Mo., and discussed arrangements looking towards going to a dance that night at some Bohemian's near Troy.

Appellant introduced evidence tending to show that prosecutrix was born at a date early enough to make her more than 16 at the time of the alleged offense.

State's rebuttal evidence:

In rebuttal, the state offered testimony tending to show that prosecutrix's reputation for chastity and morality in the community in which she resided was good.

The instructions, rulings of the court, and such other matters as may be deemed of importance, will be considered in the opinion. Opinion.

I. The information is attacked in the motions for a new trial and in arrest of judgment, although the brief of appellant makes no point in respect to this matter. Aside from the caption and verification, it is heretofore set out in full, and is sufficient as to both form and substance. Section 3247, R. S. 1919, as amended in Acts 1921, at page 284a; State v. Houston (Mo. Sup.) 263 S. W. loc. cit. 222; State v. Ansel (Mo. Sup.) 256 S. W. loc. cit. 763.

II. It is contended by appellant, that his demurrer to the evidence should have been sustained.

We spent 3 days of laborious work in going through the bill of exceptions in this cause, and have made an analysis of the testimony relating to the main issues disclosed by the record. The information charges defendant with having committed statutory rape upon Mary Rehg, a child under the age of 16 years, on June 26, 1922, in Lincoln county, Mo. The following witnesses in behalf of the state testified that said Mary Rehg was born on May 31, 1907, to wit: Mary Speilhagen, the...