State v. Marcks

CourtMissouri Supreme Court
Writing for the CourtGantt
Citation41 S.W. 973,140 Mo. 656
Decision Date06 July 1897
PartiesSTATE v. MARCKS.
41 S.W. 973
140 Mo. 656
STATE
v.
MARCKS.
Supreme Court of Missouri.
July 6, 1897.

RAPE — SUFFICIENCY OF EVIDENCE — CORROBORATION — EVIDENCE — EXCLUSION — HARMLESS ERROR.

1. Defendant and prosecutrix were in a kitchen, while her sister, who was his wife, was in a room across a hall. Prosecutrix was 16 years old, small of her age, and wore short dresses. She testified that while permitting him to play and wrestle with her, he seized her so unexpectedly that he had her under his power, and forcibly ravished her; that she screamed, and resisted with all her might, and never consented. She did not tell her sister, who entered soon after the occurrence, but told her mother a week thereafter. Defendant admitted intercourse, but denied the use of force. Held sufficient to sustain a conviction of rape, though the delay in complaining was unexplained.

2. Though defendant testifies, and denies a rape, he may be convicted thereof on the uncorroborated evidence of prosecutrix.

3. It was not reversible error to show that five weeks after an alleged rape defendant had the same gonorrheal disease that prosecutrix had one or two weeks after the commission of the offense, where defendant admitted sexual intercourse at the time it was charged he committed rape.

4. It is not error to refuse to exclude evidence that has been admitted without exception.

Burgess and Sherwood, JJ., dissenting.

In banc. Appeal from St. Louis criminal court.

Charles Marcks appeals from a conviction of rape. Affirmed.

Martin & Bass, for appellant. R. F. Walker, Atty. Gen., and C. O. Bishop, for the State.

GANTT, P. J.


The defendant was indicted at the May term, 1895, of the St. Louis criminal court, for rape alleged to have been committed by him upon one Nellie Berger, a female over the age of 14 years, in the city of St. Louis, on the 1st day of April, 1895. At the July term, 1895, he was duly arraigned, and entered his plea of not guilty, was tried and convicted, and his punishment assessed at five years in the penitentiary. From sentence on said verdict he appeals.

The testimony developed that defendant was a brother-in-law of the prosecutrix, having married her sister on 26th of February, 1895. He carried on a business of making "shop coats." The prosecutrix not only worked for him, but often visited his wife, her sister. On the morning of April 1, 1895, she went to his house, and when she arrived defendant and his wife had not yet risen. Her sister sent her on an errand, and while she was absent defendant and his wife arose, dressed, and ate breakfast. There were three rooms in the apartments occupied by defendant, — two rooms, a hall, and the kitchen across the hall. When prosecutrix returned that morning, she sat down on the bed in the kitchen with defendant and his wife, and they chatted and laughed a while, and then defendant sent his wife into the shop room across the hall to work. After her departure he began playing with the prosecutrix, wrestling with her in a joking way, as they often did. While 16 years old, she was still quite small, and wore short dresses. Her station in life appears to have been very humble. She seems to have permitted his familiarities as if he were her brother. She testified that while they were thus playing together on the morning mentioned he seized her so unexpectedly that before she could realize her position he had her completely in his power, and by force had sexual connection with her. She testified that she resisted his assault to her full ability, with all the strength she had, and never at any time consented to the intercourse. She testified: "I just screamed at first. Then I hollered, and I said, `My God, Charley; you are killing me.' He told me to shut up, and then I was in so much pain I couldn't holler." She says she did not tell her sister when she came into the room soon after the occurrence; that her sister had only been married to defendant a few weeks, and she hated to tell her. She told her mother about a week after the occurrence.

1. The sufficiency of the evidence to sustain a conviction for rape is challenged. We think there was sufficient direct and positive evidence to justify a conviction of rape in this case. Taking into account the age of the girl, that she was still wearing short dresses, the relationship of defendant, the familiarities permitted on account of that relation, the sudden attack and advantage taken of the girl, her resistance and cries, and her positive evidence that she never at any time consented to the intercourse, we think the criminal court properly submitted the facts to the jury. It is urged that she is not corroborated; that her own evidence destroys the charge of rape. But is she without corroboration? Without knowing what the defendant would testify, she went on the stand and testified (carefully and candidly, it seems to us) to the time when and place where the outrage was committed, and named the defendant as her despoiler. In all these essential particulars she was fully corroborated by the defendant himself, and contradicted by him only as to the force in accomplishing the penetration. She is also corroborated by the loathsome disease which he imparted to her. Is he to go acquit because she made no immediate complaint to her sister or her mother, or because she gives an unsatisfactory reason for her failure to do so? It is true, there is no evidence of threats of violence if she told of the outrage, but it is not to be forgotten that she was young and ignorant, and might well have hesitated at charging her sister's husband with such a crime to that sister. But let it be admitted that her delay was unreasonable, measured by ordinary experience, and that it is a circumstance which excites suspicion of her

41 S.W. 974

veracity, and tends to discredit her, the question arises, does it do more than this? Does it raise such a conclusive presumption against her evidence that an appellate court is justified in ignoring the verdict of a jury, and the refusal of the criminal court to set aside that verdict, on that ground alone? On this point we think the great weight of authority is to the contrary. In Higgins v. People, 58 N. Y. 377, Chief Justice Church, for the court, said: "Any considerable delay on the part of a prosecutrix to make complaint of the outrage constituting the crime of rape is a circumstance of more or less weight, depending upon the other surrounding circumstances. There may be many reasons why a failure to make immediate or instant outcry should not discredit the witness. A want of suitable opportunity, or fear, may sometimes excuse or justify a delay. There can be no iron rule on the subject. The law expects and requires that it should be prompt, but there is and can be no particular time specified. The rule is founded upon the laws of human nature, which induce a female thus outraged to complain at the first opportunity. Such is the natural impulse of an honest female. But if, instead of doing this, she conceals the injury...

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46 practice notes
  • State v. Hamey
    • United States
    • United States State Supreme Court of Missouri
    • March 29, 1902
    ...banc. It has been uniformly ruled that the state was entitled to the same benefit of this provision as any other party. State v. Marcks, 140 Mo. 656, 41 S. W. 973, 43 S. W. 1095. We are unanimously of opinion that the order of transfer made by division No. 2 in this cause conferred jurisdic......
  • Robinson v. State, 609
    • United States
    • United States State Supreme Court of Wyoming
    • January 10, 1910
    ...621; Brown v. State, 72 Miss. 95; Dick v. State, 30 Miss. 95; State v. McAfee, 148 Mo. 370; State v. Rapp, 142 Mo. 443; State v. Marks, 140 Mo. 656; State v. Arnewine, 36 Mo. 130; People v. Harris, 136 N.Y. 423; Stephens, 4 Park. Cr. 396; Com. v. Valsalka, 181 Pa. St. 17; Gonzales v. State,......
  • State v. Rusk, No. 142
    • United States
    • Court of Appeals of Maryland
    • January 13, 1981
    ...relate. We do not mean by this fact that the prosecutrix must be corroborated, for such is not the law of this State. State v. Marcks, 140 Mo. 656, (41 S.W. 973, 43 S.W. 1095). But we do hold that statements made by a witness that are not only in conflict with the experience of common life ......
  • State v. Shelton
    • United States
    • United States State Supreme Court of Missouri
    • November 23, 1909
    ...Mo. 162, 17 S. W. 172; State v. Black, 143 Mo. 166, 44 S. W. 340; State v. Tobie, 141 Mo., loc. cit. 561, 42 S. W. 1076; State v. Marcks, 140 Mo. 656, 41 S. W. 973, 43 S. W. 1095; State v. Harkins, 100 Mo. 666, 13 S. W. 830." In further treating of this proposition in the Wigger Case this c......
  • Request a trial to view additional results
46 cases
  • State v. Hamey
    • United States
    • United States State Supreme Court of Missouri
    • March 29, 1902
    ...banc. It has been uniformly ruled that the state was entitled to the same benefit of this provision as any other party. State v. Marcks, 140 Mo. 656, 41 S. W. 973, 43 S. W. 1095. We are unanimously of opinion that the order of transfer made by division No. 2 in this cause conferred jurisdic......
  • Robinson v. State, 609
    • United States
    • United States State Supreme Court of Wyoming
    • January 10, 1910
    ...621; Brown v. State, 72 Miss. 95; Dick v. State, 30 Miss. 95; State v. McAfee, 148 Mo. 370; State v. Rapp, 142 Mo. 443; State v. Marks, 140 Mo. 656; State v. Arnewine, 36 Mo. 130; People v. Harris, 136 N.Y. 423; Stephens, 4 Park. Cr. 396; Com. v. Valsalka, 181 Pa. St. 17; Gonzales v. State,......
  • State v. Rusk, No. 142
    • United States
    • Court of Appeals of Maryland
    • January 13, 1981
    ...relate. We do not mean by this fact that the prosecutrix must be corroborated, for such is not the law of this State. State v. Marcks, 140 Mo. 656, (41 S.W. 973, 43 S.W. 1095). But we do hold that statements made by a witness that are not only in conflict with the experience of common life ......
  • State v. Shelton
    • United States
    • United States State Supreme Court of Missouri
    • November 23, 1909
    ...Mo. 162, 17 S. W. 172; State v. Black, 143 Mo. 166, 44 S. W. 340; State v. Tobie, 141 Mo., loc. cit. 561, 42 S. W. 1076; State v. Marcks, 140 Mo. 656, 41 S. W. 973, 43 S. W. 1095; State v. Harkins, 100 Mo. 666, 13 S. W. 830." In further treating of this proposition in the Wigger Case this c......
  • Request a trial to view additional results

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