State v. Matsinger
| Decision Date | 30 November 1915 |
| Docket Number | No. 18986.,18986. |
| Parties | STATE v. MATSINGER. |
| Court | Missouri Supreme Court |
Appeal from Criminal Court, Buchanan County; Ralph S. Latshaw, Special Judge.
William Matsinger was convicted of assault with intent to rape, and he appeals. Judgment reversed, and cause remanded.
This is a prosecution by information filed in the criminal court of Buchanan county, charging assault upon Mamie Parvin, a female child of the age of nine years, with intent to rape. Trial resulted in a verdict of guilty, punishment being assessed at five years in the penitentiary. Upon compliance with preliminary requirements, an appeal was granted, and the cause is here for review.
The facts are few and, as disclosed by the record, are as follows: Some time in April, 1914, the prosecutrix, who was then nine years of age, resided with her mother and stepfather in one of three flats, which, together with a room occupied as a saloon, composed one building located in St. Joseph, Mo. The flat in which prosecutrix lived was to the rear and next to the saloon, while defendant, with his family occupied the third or last flat, both facing on the same street. Each flat had a small porch, perhaps three feet wide, six feet long, and elevated about three feet above the sidewalk on the front street.
Prosecutrix testified that at about 8 o'clock in the evening, while she was sitting on the porch, her parents being then just inside the front room—about two feet inside—defendant forcibly seized her, and, wish his hand over her mouth so her attempted screams were unavailing, dragged her past his own flat to the back yard, and there, after raising her dress, touched her private parts with his. There was no penetration, and prosecutrix testified that he in no manner "hurt" her. The testimony of physicians who later examined her corroborated this. She says, after detaining her for about 15 minutes, and threatening to kill her if she told of his conduct, he released her, and she went directly into the room in which her parents were sitting, looked at the clock, and saw that it was about 8:10. (The light was evidently on). Neither her mother nor stepfather observed anything unusual in her appearance or actions, and she said nothing to them concerning her experience. It might be here observed that there was a window between the porch from which she says she was dragged and the room in which her parents were sitting at the time; also a door, which it appears was then open, leading from the porch into the house. The record also discloses that there was a light burning in defendant's own fiat along which she says he dragged her.
A week or two (the evidence is not definite) after this occurrence prosecutrix complained to her mother about a "chapped" condition of her private parts. She bathed herself a time or two, and on further complaint was examined by her mother, who discovered a discharge, and called a physician, whose examination disclosed that she was suffering from a venereal disease, known as gonorrhea. Upon learning of this, the mother questioned the child, and was told for the first time that defendant had attempted to ravish her.
As to the essential elements and material facts prosecutrix was not corroborated, nor was there any motive shown for any false accusation against defendant.
Defendant offered some testimony tending to show that the prosecutrix had stated, after the arrest of defendant, that the defendant was not guilty. This, however, was denied by the prosecutrix.
After defendant's arrest and commitment to jail, he was visited by physicians at the instance of the prosecuting attorney, and by them subjected to a physical examination. Since this phase of the case will be dealt with in the opinion, mere reference to it is sufficient here.
Bart M. Lockwood, of St. Joseph, for appellant. John T. Barker, Atty. Gen., and W. T. Rutherford, Asst. Atty. Gen., for the State.
REVELLE, J. (after stating the facts as above).
I. The judgment should not stand, so says appellant, because: (1) The whole evidence is insufficient to sustain the verdict; (2) the court committed grievous and incurmile error in admitting evidence as to a physical examination of defendant, which disclosed that he was venereally diseased; and (3) the requested instruction on common assault should have been given, instead of refused.
With the first contention we do not agree; with the second we do, and on the third we express certain views, and all for the following reasons:
As to the first insistence, it cannot be said that the testimony of the prosecutrix, if true, did not tend to prove the charge of which defendant was convicted; and this issue as to whether true or false was for the jury. While it may be conceded that the actions of this defendant, as detailed by this young girl, seem unnatural and disclose a wanton disregard for ordinary human impulses, and committed under circumstances which incurred great risks of detection and punishment, nevertheless we cannot close our eyes to actual worldly happenings, and the records of this and other courts which establish that such things are sometimes done, and that corroborative evidence is frequently unavailable. That a conviction for rape, or attempted rape, may be sustained on the uncorroborated evidence of the outraged female is well settled in this state, and a discussion of the correctness or incorrectness of this conclusion could add nothing of value to either legal literature or results.
II. From the fact, however, that corroboration in such cases is not legally required, and that this is a charge easily made without corresponding opportunities for defense, and the further fact that because of the heinousness of the crime and human abhorrence therefor, the charge itself frequently engenders a prejudice,
"officers," as said by Judge Brown in State v. Horton, 247 Mo. loc. cit. 668, 153 S. W. 1054 "should conduct prosecutions of this character with scrupulous fairness and avoid injecting into the minds of the jury any matter which is not proper for their consideration, or which would add to the prejudice which the charge itself has produced in their minds."
After the state had established that about one or two weeks after the assault was alleged to have been committed the prosecutrix was found to be suffering from a venereal disease, it introduced the...
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State v. Cochran
...to introduce indirectly testimony that could not properly be introduced directly. State v. Horton, 247 Mo. 657, 153 S.W. 1051; State v. Matsinger, 180 S.W. 856; State Newcomb, 220 Mo. 54, 119 S.W. 405. (6) The trial court erred in excluding from the evidence in the case defendant's Exhibit ......
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... ... according to the former case, it must be shown that there was ... an intent to penetrate, and not merely rub the private parts ... of the defendant against the private parts of the female for ... the purpose of producing an emission. The case of State ... vs. Matsinger (Mo. Sup.) 180 S.W. 856 is even more in ... point. The syllabus in that case is as follows: ... "In ... a prosecution for assault with intent to rape a girl of nine, ... where the testimony discloses that defendant merely raised ... the child's dress and placed his private parts ... ...
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