State v. Lovitt

• Decision Date: 09 May 1912
• Citation: 147 S.W. 484
• Parties: STATE v. LOVITT.
• Court: Missouri Supreme Court

147 S.W. 484

STATE v. LOVITT.

Supreme Court of Missouri, Division No. 2.

May 9, 1912.

Rehearing Denied June 1, 1912.

1. CRIMINAL LAW (§ 1069) — APPEAL — TIME FOR TAKING.

Though Rev. St. 1909, § 5313, authorizes the Supreme Court, on motion of the Attorney General, to dismiss an appeal for failure to perfect the same within one year, unless appellant shows good cause for not perfecting his appeal in time, an appeal will not be dismissed, though the transcript was filed two years after the appeal was granted, where the record does not show that accused was responsible for the delay, and the record was filed long before the motion to dismiss.

2. CRIMINAL LAW (§ 1050) — APPEAL — WAIVER OF OBJECTIONS.

Objection to the filing of a second information on the original information being lost is not reviewable on appeal from a conviction, where accused did not except to the trial court's ruling, or to the action of the prosecuting attorney in filing a new information.

3. INDICTMENT AND INFORMATION (§ 14) — NEW INFORMATION — RIGHT TO FILE.

Under the express terms of Rev. St. 1909, § 5060, a new information may be filed on the original being lost or destroyed.

4. WITNESSES (§ 268) — CROSS-EXAMINATION — SCOPE.

Cross-examination is not restricted to matters tending to prove the issues on trial.

5. CRIMINAL LAW (§ 695) — RECEPTION OF EVIDENCE — OBJECTIONS.

In a trial for assault with intent to rape, a question, asked accused on cross-examination, as to whether he abandoned a former wife, while objectionable as improper cross-examination, was admissible as against an objection that it did not call for testimony tending to prove accused's guilt or innocence.

6. RAPE (§ 40) — EVIDENCE — ADMISSIBILITY.

Where, in a trial for assault with intent to rape, accused offered evidence tending to show specific acts of unchastity by prosecutrix, it was proper to admit testimony offered by the state to prove her good reputation for virtue and chastity.

7. RAPE (§ 51) — EVIDENCE — FORCE.

The element of force is sufficiently established, in a trial for assault with intent to rape, by showing that accused, when making the assault, intended to overcome any resistance.

8. RAPE (§ 60) — VERDICT — SUFFICIENCY.

In a trial wherein issues of assault with intent to rape and common assault were submitted, and the jury were instructed, on a conviction of the higher offense, to assess a punishment by imprisonment in the penitentiary, a verdict, finding accused guilty and assessing his punishment at two years' imprisonment in the penitentiary, sustains a conviction of the former offense.

9. CRIMINAL LAW (§ 893) — VERDICT — SUFFICIENCY.

The sufficiency of a verdict is controlled by the jury's intent, as ascertainable from the pleadings and instructions.

10. RAPE (§ 53) — ASSAULT WITH INTENT TO RAPE — EVIDENCE — SUFFICIENCY.

Evidence held to sustain a conviction of assault with intent to rape.

Appeal from Circuit Court, Harrison County; Geo. W. Wannamaker, Judge.

Horace Lovitt was convicted of assault with intent to rape, and he appeals. Affirmed.

Garland Wilson and A. L. Hughes, for appellant. Elliott W. Major, Atty. Gen., and John M. Dawson, Asst. Atty. Gen., for the State.

KENNISH, J.

Upon an information charging him with the crime of assault with intent to rape, appellant was tried at the January term, 1910, of the circuit court of Harrison county, found guilty, sentenced to imprisonment in the penitentiary for a term of two years, and from such sentence and judgment appealed to this court.

The evidence for the state tended to show the following facts: Mattie Miller, the prosecutrix, a married woman 22 years of age, with her husband, Joe Miller, and their two children lived in the town of Andover, in Harrison county. The defendant, a married man 28 years old, lived near Andover; and he and prosecutrix had been well acquainted for a number of years. On November 20, 1909, about 6:30 p. m., defendant drove into Andover in a two-horse buggy. He stopped at the Miller home and inquired for the husband. Being informed by prosecutrix that he had gone to a store, defendant drove to the store and asked the husband to go with him to Lamona, Iowa, a town about six miles distant. The invitation was accepted and, after Miller had gone to his home and told his wife where he was going, the two men started to Lamona in defendant's buggy. When they were within about a mile of Lamona, defendant said he wanted to see some person who lived northeast of the town, and suggested that Miller walk the remainder of the distance to Lamona and there wait for him. Miller then walked on to Lamona, and the defendant, after going only a short distance to the north, drove back to Andover and immediately went to the Miller home, arriving there about 8 o'clock p. m. There was no one in the house, except prosecutrix and her children. He entered the house without knocking. Prosecutrix asked where her husband was, and defendant answered that he was at Ike Hampton's drunk. Prosecutrix said: "Well, you had better get out of here and bring him home." Defendant said he was going home, and went out of the house. Prosecutrix then had her baby in her arms, attempting to rock it to sleep. The other child, then a little more than two years old, was in bed asleep. In a few minutes the baby went to sleep, and prosecutrix put it in bed and went out into the yard. Defendant was in the yard, and said, "Hello." She recognized his voice, and, being frightened by finding him still on the premises, ran into the house. The defendant followed her, and as soon as he was inside the house told her, in language that need not be reproduced, that he had driven all the way from Lamona for the purpose of having intercourse with her; and that he would accomplish his purpose or kill her. She replied that he would do nothing of the kind. Thereupon he threw his arms about her and dragged her into the kitchen. She demanded repeatedly that he release her; but he paid no heed to her demands. In the struggle that took place while he was dragging her into the kitchen, she fought and resisted him in every way she could by kicking him, scratching him, and pulling his hair. Part of the time she was screaming. After a short struggle in the kitchen, she freed herself and ran back to the front room, with the defendant following her. There were only two rooms in the house; and the children were in bed in the front room. They had been wakened by the noise of the struggle, and were crying. The oldest one was trying to climb out of bed and get to its mother. Prosecutrix then threatened to shoot defendant, unless he left the house, and told him she would tell her husband what he had done. He said: "You better not. Joe will leave you; and if he don't leave you we will get in a fight, and I will kill him." Defendant then left the house, and as he was leaving he paused in the door and said: "If it wasn't for those two children yelling like that, I would show you what I could do to you." He then drove back to Lamona, found Miller there waiting for him, and together they returned to Andover.

The defendant introduced evidence tending to show the following facts: Defendant and prosecutrix, before either was married, lived on adjoining farms. Improper relations existed between them then, and such relations continued after both were married. On the evening in question, the defendant stopped at the Miller house the first time to arrange a meeting with prosecutrix that evening, and was told by her that such a meeting would be agreeable, if he could get her husband out of the way. He asked the husband to go to Lamona with him, took him to a point near that town, promised to meet him in Lamona later in the evening, and then drove back to Andover for the purpose of meeting prosecutrix. When he arrived at the home of prosecutrix, she said she was afraid they were being watched, and that he had better leave and meet her some other time. They kissed each other two or three times; but defendant made no assault upon prosecutrix, and did not make the statements testified to by her as to his purpose in coming back from Lamona and his intention to carry out such purpose. When it was suggested that they were probably being watched, defendant left the house, drove back to Lamona, found Miller there waiting for him, and brought him back home. The state, in rebuttal, introduced several witnesses who testified that prosecutrix bore a good reputation for virtue and chastity.

The court gave instructions authorizing a conviction of assault with intent to rape, or common assault, or an acquittal. The jury returned the following verdict: "We, the jury, find the defendant guilty, and assess his punishment at two years' imprisonment in the penitentiary."

(1) The Attorney General has filed a motion to dismiss this appeal, on the ground that it was not perfected within 12 months from the date of the order allowing the appeal, and we shall give that first consideration. It appears from the record that the appeal was granted on the 22d day of January, 1910, and that an order was then made, allowing defendant until and during the May term, 1910, to file his bill of exceptions. It is further shown that the time for filing the bill of exceptions was extended from time to time, and that the bill was not filed until October 14, 1911. The transcript of the record was filed in the office of the clerk of this court on February 2, 1912. It thus appears that more than two years elapsed between the time of granting the appeal and the time the transcript reached this court. Notwithstanding this inexcusable delay, we have concluded to overrule the motion to dismiss the appeal, and for the...