State v. McChesney

• Decision Date: 31 March 1916
• Docket Number: No. 19314.,19314.
• Citation: 185 S.W. 197
• Parties: STATE v. McCHESNEY.
• Court: Missouri Supreme Court

185 S.W. 197

STATE v. McCHESNEY.

No. 19314.

Supreme Court of Missouri, Division No. 2.

March 31, 1916.

Appeal from Circuit Court, Bates County; Chas. A. Calvird, Judge.

T. A. McChesney was convicted of assault with intent to rape, and he appeals. Reversed and remanded.

Defendant was convicted in Bates county of assault with intent to rape, and his punishment fixed at imprisonment in the penitentiary for a term of two years. After the usual motions he has appealed.

The only contention made, or borne out by the record, or now urged is that the evidence was insufficient to take the case to the jury. This fact makes necessary rather an extended statement of the evidence upon which the case turns. We need not use up space to set out the facts of corroboration, which we concede were sufficient to raise questions of fact for the jury's determination, rather than questions of law for us. The trouble lies with the facts which the corroborative testimony was adduced to support. These facts in this case are found alone in the testimony of the prosecuting witness.

Defendant lived in the western part of Bates county on a farm with his widowed mother, a brother, and an unmarried sister. The prosecuting witness, who was a married woman, lived on an adjoining farm with her husband and two children, aged 5 and 3 years respectively. Defendant had been a frequent visitor at the home of the prosecuting witness, had worked there at times for her husband, and, as the record discloses, was on very friendly terms with the whole family. Their homes were half a mile apart. The neighborhood was well settled. A Mr. Endres lived within 40 rods of the home of the prosecutrix, and was about his premises within sight practically all of the afternoon below mentioned. The home of prosecutrix was connected with the neighborhood by a party line telephone, so that "listening-in" was both a possibility and a pastime.

On the day of the offense charged defendant, in the absence of the husband, appeared in the yard of the prosecutrix's home about 1 o'clock in the afternoon. He halloed. She heard him and knew his voice. He then knocked on the back door. She opened it, and he walked in without an invitation. He talked of the weather, chickens, their financial affairs, and other matters. The two little children were with their mother. Defendant had not been in the house long until the conversation shifted to the matter in controversy. Prosecutrix found out what he wanted. He began pulling up her clothes and soliciting her. This was within half an hour of his coming. Both he and she were back in the kitchen, having gotton there seemingly by mutual consent. The little children had been induced by defendant to go into another room to make pictures. Defendant promised them a nice Christmas card if they would thus absent themselves from the kitchen.

About 3 o'clock in the afternoon Mrs. McChesney, mother of defendant, called over the telephone, but received no response. Later she called again, with the same result. The solicitations of defendant for intercourse with prosecutrix went on with these slight interruptions. About the middle of the afternoon a Mrs. Bitner, a neighbor, called over the telephone. Prosecutrix answered the call. A conversation was held over the telephone in which they talked about chickens and similar irrelevant matters. Mrs. Bitner remarked that the sun seemed to have gone on a visit, referring to the fact that it was cloudy. At this remark prosecutrix laughed. While this conversation was going on prosecutrix was standing up at the telephone in the kitchen, and the defendant was standing with her, so she swears, cautioning her to be careful what she said, and was slapping her in the face and on the back.

The schoolhouse was not far off. A young lady, Miss Virgil Payne, was teaching. She dismissed school at the usual hour, about 4 o'clock, and got on her horse and rode to the home of prosecutrix. She stopped in front of the house. The children reported to defendant and their mother the fact of Miss Payne's arrival. The children went out onto the porch. Miss Payne remained on the horse. Defendant remained out of sight in the kitchen, and prosecutrix went to meet the teacher. Miss Payne wanted her school warrant due her for salary. Prosecutrix went back into the house to write it. She wrote it and brought it out. It was found on inspection that the figures showing the amount were left out though the amount was written in. In all other respects the warrant had been correctly drawn. Prosecutrix took it back into the house to correct it, and then returned with the corrected warrant. Miss Payne testified that she noticed nothing unusual, except that prosecutrix seemed nervous and her face was red. Nothing was said to Miss Payne about defendant's presence or acts. The teacher having gone, prosecutrix and the children went back into the house. Defendant had then been there three hours. His purpose had been fully understood for two hours and a half. Prosecutrix being asked why she did not give out information that defendant was trying to assault her, and was misbehaving, or why she did not escape with the children, she said that she was so badly scared that she did not have sense enough to run, and was afraid to leave the house and the children.

There seems to have been an outdoor cave near by. In this cave there were some apples. Defendant had become acquainted with this fact. He had offered the prosecuting witness, at a time differently stated, and to that extent dark in the record, $5 for intercourse with her, and then raised his offer to $10 without success. Without successful protest on the part of the mother, he promised the children a nice Christmas card if they would get apples from the cave for the whole party, and the children went out to the cave after them. Prosecutrix swears that the defendant thereupon said, "Now is my chance," and laid hands on her and threw her onto the floor. She says that she became unconscious, but that defendant did not have sexual intercourse with her; that the door of the kitchen wherein she and defendant were was left ajar, and as the children returned she was restored to consciousness, and, hearing them coming, she yelled, and when they got into the house she had risen and was on the floor sitting up.

Defendant made no more demonstrations. He went out to the toolhouse near by, and was gone five minutes or more. He came back with a hammer, and said he was "prepared to defend himself." She got the poker, but there were no hostilities on either side. The record on this point does not even convey the idea of hostility. During this absence while defendant was out of the house the doors were not locked against him, nor was any resort had to the telephone to inform the neighbors or the public. Neither Mrs. Bitner nor any one else was called. This inaction is explained by prosecutrix for that, as she tell us, she was afraid to call for help. Defendant went home on being informed by prosecutrix that the men boarding at her home would soon be in for supper and that she must prepare it for them. This was about 5 p. m.

Between 5:30 and 6 Gus Endres, a neighbor, who had been at work in the field, came with his team into the yard. He watered the horses, and while so doing, and while within two rods of prosecutrix, saw her standing on the porch. The children were in the yard. There were no marks of violence noticeable. No complaints were made to this neighbor. A little later, and between 6 and 7, John Baker, a boarder, came in. Prosecutrix was getting supper. Having gotten it she waited on the table. Nothing unusual was seen by this witness; no complaint was made. Between 7 and 8 the husband also came. The wife and two children went out to meet him in the yard. The little girl was ahead. She spoke first, and informed her father that defendant had been on the premises. Thereupon prosecutrix told of the alleged assault.

But, while in this sketch we have stated in substance most of the facts relied on, we may in fairness let the prosecutrix herself state the facts upon which the state must stand or fall. She said in chief:

"Well, he commenced pulling up my clothes, and solicited sexual intercourse with me. I told him I wanted him to get away from there and never wanted him to come back. He kept on insisting, and said he was going to cover me all over. He kept on insisting, and kept pulling up my clothes all the time, and I was objecting all the time to him, and the children had come and he tried to keep them away and kept scaring me, and kept making threats. He said if I didn't do as he said it wouldn't be well with me. He told me that time after time, and he made threats towards my husband along the same line; that if I didn't do as he said it wouldn't be well with me, nor it wouldn't be well with my husband before he got home that night. Then he offered to pay me. He wanted to know if I would do it just once—that is the way he would say—for $5. I told him. `No.' Then he wanted to know if I would for $10. I told him I wanted him to go away; never spoke about the gun. I was fighting him all the time. I was scared so bad I did not know what I was doing hardly. He kept telling me to come on and pulling at me and trying to force me, and I would yell, and the children would come, and when they came he wouldn't do that. Then he hired the children to go to the cave to get him an apple. As soon as they were gone he said, `Now is my chance,' and grabbed me and threw me on the floor, and I guess I was unconscious awhile, and didn't know how I got on the floor, but I heard the children coming, and then I yelled. I kind of come to when I heard them coming, and I seen him reach for the door to push it shut. I yelled then, when I seen the door pushed to. He tried to shut it, but I held it open so they could come in. Well, he threw me agin the wall and kept striking and hitting me. * * * I made outcry while he was...