State v. Mcmillan

• Decision Date: 17 January 1898
• Citation: 20 Mont. 407
• Parties: STATE v. McMILLAN.
• Court: Montana Supreme Court

20 Mont. 407

STATE

v.McMILLAN.

Supreme Court of Montana.

Jan. 17, 1898.

Appeal from district court, Cascade county; C. H. Benton, Judge.

William McMillan was convicted of rape, and appeals. Reversed.

The appellant, William McMillan, was on the 12th day of September, 1896, convicted of the crime of rape in the district court of Cascade county. As appears from the record, the defendant is charged with committing said crime upon one Mary Augustine, a child nine years of age, on the 23d day of August of said year. Between the time of the alleged commission of the offense and the conviction of the defendant, he had an examination upon said charge before a justice of the peace of Great Falls, Cascade county. On the 15th day of September of said year, the court sentenced the defendant to imprisonment in the penitentiary for the term of his natural life. The conviction was had upon the unsupported evidence of the girl upon whom the assault was alleged to have been committed, so far as the principal offense was concerned. Her testimony is substantially as follows, omitting many of the disgusting details, which we think unnecessary to put in this statement: She testified that she lived with her parents on a ranch in Cascade county, near Priest's Crossing, on Sun river (it appears that the river separates the residences of the parents of the prosecutrix and the defendant, but that it is so narrow that people can well talk to one another across the same that she had never before visited the home of the defendant until August 23, 1896, although she knew him well before that time, so well, indeed, that she called him familiarly, “Billy”; that on August 23d she went to his home, and remained over night; that she slept on a cot in a front room, by an open door leading into the bedroom occupied by the defendant and his wife and their little boy, four years old; that simply a thin board partition separated the two rooms, and that the door between them stood open during the entire night; that in the night the defendant woke her up, and committed upon her the crime alleged in the information; that she bled some, but suffered very little, if any, pain; that defendant did not say anything when he came to her cot; that she knew he was there for something nasty; that she said nothing, made no outcry, because defendant, said he would choke her if she “hollered”; after the commission of the offense charged, she says, she went out doors by the front door four times, when Mrs. McMillan took the cot, and put it in her room, at the foot of the bed in which she and her husband (the defendant) were sleeping; that during all this time nothing was said by any one; that, while the offense was being committed, she heard the wife of the defendant talking to her little boy, and for this reason knows that she was awake; that, after Mrs. McMillan moved the cot on which the prosecutrix was sleeping into her room, she got up and went out twice; that there was blood on her petticoat, and that Mrs. McMillan washed it the next morning (this is denied by Mrs. McMillan, who swears that she did not wash the petticoat, but says she washed the outer dress of the prosecutrix, in which she did not sleep, because it was very dirty, but not bloody; that there was no blood on it); that, the morning after the alleged offense, she got up, had breakfast, and went out playing with the little boy; that she swung in a swing, climbed on top of a shed, and ran about on the roof thereof; that she did not bleed any after the night of the alleged rape until she was on the way, the next day, to Great Falls, to be examined by doctors. She further testified that after she got up in the morning after the alleged offense, and was washing, she heard her mother and a Mrs. Briggs, a neighbor, quarreling at the house of her parents, across the river from the defendant's house; that she stood in the front door, and mimicked or mocked her mother and Mrs. Briggs while they quarreled; and that she never said anything at any time to Mrs. McMillan or any one else at McMillan's about the offense. Late in the evening on the day following the night on which it is alleged this crime was committed, and after the prosecutrix had spent the day playing around the house of the defendant with his little boy, she says she saw her brother and another little boy wading in the river on the side next to her own house; that, seeing them there, she waded across the river to them; and that the reason why she did wade the river was because she wanted to go where they were. When she got home, about dark, she states her father and mother were not there; that they were in Great Falls that day; that, when they came home, she told them of what had occurred at McMillan's the night before, but that they made no examination of her person, but about noon the...