State v. Marcks

• Decision Date: 25 January 1898
• Parties: STATE v. MARCKS.
• Court: Missouri Supreme Court

43 S.W. 1095

140 Mo. 656

STATE v. MARCKS.

Supreme Court of Missouri.

January 25, 1898.

Dissenting opinion by SHERWOOD, J.

For majority opinion, see 41 S. W. 973.

SHERWOOD, J.

The charge in this case is rape, of which defendant was convicted, and his sentence fixed at five years in the penitentiary. From the judgment he has appealed. The locality of the crime charged was a small kitchen on the ground floor, in which was a bed on which defendant and his wife slept. There were only three rooms on the ground floor, and these were let to defendant, who, in one of the other two rooms, carried on with his wife the business of coat-making or tailoring. The kitchen, which performed the triple function of kitchen, dormitory, and dining room, was separated from the other room by a little hall; and the upper rooms, leased to defendant's father, were occupied by the latter and his wife, and in one of them was carried on by defendant's father and mother the business of coat-making; and in the rooms devoted to this purpose, both above and below stairs, several hands were employed almost constantly during the usual working hours on week days. The date of the crime is fixed by the indictment and the evidence on April 1, 1895, and the venue laid in the bed in the kitchen. The testimony, in brief, of the prosecutrix, was to the effect: That on the 5th of March preceding she was 16 years old. That on the morning in question she came down from her mother's house to that of defendant's, to work at his business of coat-making. Defendant, it appears, was her brother-in-law, and had been married to her sister only some five weeks. Arriving at her brother-in-law's at about 7 o'clock in the morning, and knocking at the kitchen door, where her sister and husband were, her sister told her that they would not have any work, but sent her to the store on some errand. On her return her brother-in-law, who had been out, returned with a coat, which he directed his wife to take to pieces, etc. He then picked her up, threw her on the bed, as it was his custom to do, and was wrestling with her, when her sister went out into the front room to put the two pockets in the coat, leaving them on the bed together. Then, the prosecutrix states, defendant suddenly seized her, held her hands across her breast with one of his, pried her legs apart (which were crossed) with his foot, and accomplished his purpose; she struggling, as she says, all she could, to prevent him. During the perpetration of the act, she says, she told him, "My God! Charley, you are killing me," when he said, "Oh, shut up," and then uttered some very vulgar expression. After he had gotten through, she says: "My sister was coming from the room, — he must have heard her coming, for he let me go; and I got up and brushed my hair, and sat back on a chair, so she wouldn't know any different." Asked what defendant did when her sister was coming into the room, she says: "I don't know what he did. I was so busy thinking that I didn't see what he did." Asked if she made any complaint right away, she said: "No sir; it was one week, exactly, in the evening, that I told my mother." Asked why she did not make any complaint at that time, she replied: "Because my sister hadn't been married to him long, and I didn't want to let it be known, to make her unhappy," and that it was on her sister's account that she said nothing. After the transaction on the bed was over, as previously stated, her sister came in, and then, asking her if she wanted it, gave her some coffee, which she drank, but that she didn't tell her sister while she was drinking the coffee, and that she "didn't intend to tell her." This was on Monday morning, April 1st. After she drank the coffee, prosecutrix went home, and felt pains that night, etc. On the next Saturday, she says, her brother-in-law, the defendant, came to her mother's home, and told witness they had some work for her to do, and told her to come down there on the following Monday. Accordingly, on the next Monday morning, one week from the time of the occurrence in the kitchen, she went down to defendant's house; but when she arrived there she was told there wasn't any work to do for defendant, but it was for the "old man," as defendant's father was called; and that she was angry when she heard that, and said she didn't want to work for the old man, because he scolded so much. She then states that defendant, who was alone in bed in the kitchen, called her, and said: "Come in here, Nell." "He called me five or six times, I guess. I was angry. He called me up to him, and put his arms around my waist. He was in bed. He says: `You wouldn't do anything for anybody but me, would you, Nell?' I says: `No; I won't do anything for you.'" "He says: `Oh, yes you will.' Then he got angry, and took hold of me, and threw me over on the bed; and I had a hard tussle with him to keep him from assaulting me again the same way." That on that night, when she went to bed, she told her mother what had occurred. That the reason she told her was this: "I kept telling her I didn't want to go down there any more. She wanted me to go for some money he owed me. I says, `I don't want to go down there any more, only when they are working.' I says, `I never want to be in their house again.'" Her mother then asked her why she did not want to go down to defendant's house, and, speaking of it, she says: "Because my mother asked me, and it made me angry. She told me it was nonsense, the reason why I didn't want to go down there; and that made me angry, to think that she should say it was nonsense, when it was so important a case; and I couldn't keep from telling her, and I just told her." Shortly after this she went to consult a physician, who gave her some medicine, and after this she was confined to her bed for about a week, being attended by a physician; and then, on the 1st day of May, she was sent to the hospital, where she was found to be suffering with a virulent case of specific gonorrhea and peritonitis (arising from such gonorrheal condition); suffering a great deal of pain and high fever, and having a severe discharge. After remaining at the hospital about 12 days, although not cured, she wanted to go home, and was accordingly discharged. Testimony of several witnesses for the defense shows that the incidents which the prosecutrix relates as to her second visit to defendant's rooms really occurred on the 2d day of April, and not a week after the alleged ravishment. It was in evidence, also, that the prosecutrix was very affectionate in her demeanor towards defendant; would follow him around, sit in his lap, and kiss him, on repeated occasions, as testified to by girls who worked in the shop with her. There was also testimony of two witnesses that they (companions of defendant's) had seen him in copulation with prosecutrix, on his bed in the kitchen, on the morning of March 18th, next preceding the Monday of April 1st. Neither on direct nor cross examination of the prosecutrix did it appear that she was threatened or intimidated, or in any manner under the control of defendant, and thus prevented from making complaint. Nor does it appear that her opportunities were not the most ample for making complaint. Indeed, she states that she reached her mother's house shortly after the alleged occurrence, but did not tell her mother until a week had elapsed, and then only after defendant had made a fresh assault upon her; and then only because she became angry at her mother because the latter insisted that the reason she gave for not wishing to go down to defendant's house was "nonsense." Nor does it appear when she told her sister of the occurrence, but it would seem that it was not until after her return from the hospital; and as she did not ascertain what ailed her until she reached the hospital, and as she remained there for 12 days, it is not at all probable that she conveyed the information to her sister until about the 15th of May, or thereabouts. Indeed, she intimates as much in her cross-examination, because she says, in reference to that, "When I was horribly diseased, then I couldn't help telling her." And thereupon, being asked the following questions, she made thereto the following replies: "Q. And that is the reason you told it? A. Yes; I told it because I wanted him punished. My sister's feelings was all gone then. Q. And, if Charley hadn't given you the disease, you wouldn't have told it, would you? A. I don't know for sure. I might have."

It must be quite apparent from what has been already related that there were no elements of corroboration in this case. Now, corroboration may occur in various ways: First, and chiefly, by the immediate complaint of the outrage, as soon as suitable opportunity offers. Such opportunity certainly was afforded immediately upon the sister of the prosecutrix coming into the room; and certainly such opportunity was again afforded when the prosecutrix returned home, where her mother was, just after she drank the cup of coffee her sister gave her. But not a word is heard from the lips of the prosecutrix on the subject of the outrage until a week after its occurrence, until after she had suffered pain, and until after its attempted repetition on the morning of that day. And even then the revelation is not made to the mother as the result of a natural outburst of outraged feelings, but because she grew angry at her mother. In a word, her complaint to her mother was not the language of any emotion caused by the supposed occurrence, but simply hearsay, the relation of a past transaction, and therefore possessed of none of the probative force of a complaint, because lacking every dominant characteristic which makes such utterances receivable in evidence. When such a crime as the one here charged is perpetrated on a woman, it is so natural to tell at once of the foul occurrence, that the universal experience of mankind is that, when it happens,...