State v. Merricks

• Decision Date: 04 June 1929
• Docket Number: No. 29523.,29523.
• Citation: 18 S.W.2d 23
• Parties: STATE v. MERRICKS.
• Court: Missouri Supreme Court

18 S.W.2d 23

STATE v. MERRICKS.

No. 29523.

Supreme Court of Missouri, Division No. 2.

June 4, 1929.

Appeal from Circuit Court, Cape Girardeau County; Frank Kelly, Judge.

Lloyd Merricks was convicted of an assault with intent to rape, and he appeals. Affirmed.

Stratton Shartel, Atty. Gen., and A. B. Lovan, Asst. Atty. Gen., for the State.

HENWOOD, C.

The defendant was found guilty of an assault with intent to commit rape, in the circuit court of Cape Girardeau county, and sentenced to imprisonment in the penitentiary for three years, in accordance with the verdict of the jury. He appealed, but has filed no brief in this court.

According to the testimony of the prosecutrix, Pearl Grace Wondell, she was 16 years of age, and lived with her parents about two miles from Randles, in Cape Girardeau county, at the time in question. She had never had any "dates" with boys, but had known defendant about two years. Early in the evening of Sunday, June 24, 1928, she and her brother, Emory Wondell, went from their home to Arbor to attend church services. Upon learning that there would be no church services, her brother left, and she started to walk back toward her home with Edna Parker and Paul Musgrove. They met defendant near the Arbor schoolhouse, and he asked them to take a ride with him in his automobile, which had only one seat. She sat next to defendant and Edna sat on Paul's lap. They drove toward Greencox about a mile, then turned around, and Paul and Edna got out to leave a coat at Mr. Hitt's, near Arbor. After Paul and Edna got out, defendant kissed and hugged her. When they stopped at Arbor, Edna and Paul returned from Mr. Hitt's and talked to them a few minutes. Then Ollie Johnson and another boy got into the car with her and defendant, and they drove to Delta, four or five miles from Arbor, where they left the two boys. It was then 9:30 o'clock and she and defendant started toward Randles in the car. On the way he stopped to get some water to put in the radiator of the car, but found no water at that place. After driving about one mile farther, he stopped again and filled the radiator with water, which he carried in a bucket from a ditch near by. He got into the car and commenced hugging and kissing her again. She says: "He kept trying to love me up close, and tried to lay me down in the seat on my back." He had one hand on her back and the other on her knee. She successfully resisted his effort to do this and got out of the car and ran up the road. He caught her, held her, and then took her back to the car, and said he "was going home." She then got back into the car, and he began "loving" her again and tried to hold her in the car. She got out of the car again and ran, and he caught her and "drug" her back to the side of the car. He held her close to him, pulled up her dress, pulled down her bloomers, opened his pants, took out his sexual organ, and said he wanted to have sexual intercourse with her and, if she "didn't give it to him, he was going to steal it." She says: "He would rear back and lift me up on his stomach." He then tried to throw her down on the ground and she got away from him, leaving her hat "lodged in his arms." She says: "I run about one hundred or fifty yards and I crawled over a wire fence and waded water up to my knees and got against the railroad track and sat down in the weeds, so he couldn't find me." While she was hiding in the weeds, she saw defendant go "up and down the road three times." It was about 10:30 o'clock when she got away from him. She stayed in the weeds about two hours, and then walked three and one-half miles to her home, reaching there about 3 o'clock in the morning. She first told her mother, and then her father, what happened, when she got home, "the same morning." Upon cross-examination, she said she did not scream nor strike defendant when he was trying to have sexual intercourse with her, but she did try as hard as she could to get away from him, and, when he tried to throw her down on the ground, she did get away from him.

Clara Wondell and J. W. Wondell, mother and father of prosecutrix, testified that she came home at 3 o'clock in the morning and told them of her experience with defendant. Her mother said that she had no hat, her shoes and stockings were wet and muddy, her bloomers were torn, and "she was all red in the face," when she got home. Her father said that her shoes and stockings were wet and muddy, and "she was wore out; her face was red, looked like she hadn't slept for a week." He also said that he took her to the prosecuting attorney.

John Sachse, the justice of the peace before whom defendant was given a preliminary hearing on the offense charged, testified that he had a conversation with defendant at the jail on the day he was arrested; that defendant asked him to explain "what rape was"; and that in the course of the conversation defendant said: "Well, suppose you don't get it in? Suppose you just try and don't do it?" Upon cross-examination, he said he went to the jail to see defendant because defendant's sister told him defendant wanted to see him and talk to him.

The defendant, testifying in his own behalf, said he took the prosecutrix and Edna Parker and Paul Musgrove for a ride on the night in question. While Edna and Paul were taking the coat into Mr. Hitt's, the prosecutrix "was laying over" on him and he kissed her and she returned the kiss. She said it would be "all right" to drive to Delta, to take the two boys, before starting to Randles, and "she was laying over" on him all the way. He said that, after they left Delta, he "loved her up," and she responded with kisses and put her arms around him. When he stopped to look for water the first time, she got out and ran three or four steps, and said: "You can't catch me." He "caught hold of her and brought her back to the car." He "lead her back by the arm," and her arm was around his waist. "She stepped into the car herself." He stopped the second time about 300 yards from Randles. He filled the radiator with water, and, while he was cleaning his spark plugs, she got out of the car, and said she was going to the "church house," where she thought she would find her brother. About 20 or 30 minutes later, he drove "down there," but found the church closed and went home. It was then 10 or 10:30 o'clock. He denied that he opened his pants and that he pulled up her dress and pulled down her bloomers, but admitted that he did "love her up" and that he asked her to have sexual intercourse with him, but said he never tried to "force her or anything like that." When he "mentioned it, she said she wasn't that kind of a girl." She was not mad nor angry when she left him. He didn't know anything about her hat, and he did not run up and down the road after she left.

Paul Musgrove testified that, when he and Edna Parker returned to Arbor from Mr. Hitt's and talked to defendant and the prosecutrix, defendant had his hand "kind of on her shoulder" and her arm was "kind of around his neck.'"

Charles Joiner testified that he and defendant were working together as railroad bridge carpenters and bunking together at Delta at the time of the occurrence in question. He and Ollie Johnson went from Delta to Arbor with defendant on that Sunday evening, and rode back to Delta with defendant and the prosecutrix in defendant's car. Defendant asked him and Johnson to drive over to Randles with him and the prosecutrix before going to Delta, but he insisted that defendant take him and Johnson to Delta first. On the way to Delta, he noticed that the prosecutrix "had her head laying over" on defendant; "had her head on his shoulder." He also said that defendant returned to the bunking car at Delta "some time after eleven" that night.

I. The defendant complains, in his motion for a new trial, of the testimony of John Sachse, justice of the peace, relating to a conversation with defendant after his arrest and while he was in jail. It is said that the statements made by defendant and his inquiries as to what acts are necessary to constitute the crime of rape, in the conversation mentioned, were "tainted with coercion and duress." The record shows that defendant made no objection to this testimony at the time it was offered, and for that reason he is not in a position now to say that the trial court erred in admitting it. However, the charge that such statements and inquiries were made under coercion and duress is wholly unwarranted. The justice of the peace testified that all of defendant's statements and inquiries were made voluntarily, and nothing to the contrary appears. State v. Hart, 292 Mo. 74, 237 S. W. loc. cit. 477.

II. It is also asserted in the motion for a new trial that the evidence is not sufficient to sustain the defendant's conviction. As we have had occasion to say in numerous cases, this contention is, manifestly, based upon a misconception of the constitutive elements of the offense charged. In dealing with the statute which defines this offense (section 3263, R. S. 1919), this court has always held that: "If the intent, with the present...