State v. Murphy

• Decision Date: 09 November 1893
• Citation: 25 S.W. 95,118 Mo. 7
• Parties: The State v. Murphy, Appellant
• Court: Missouri Supreme Court

25 S.W. 95

118 Mo. 7

The State v. Murphy, Appellant

Supreme Court of Missouri, Second Division

November 9, 1893

Appeal from St. Louis Criminal Court. -- Hon. Henry L. Edmunds Judge.

Affirmed.

McDonald & Howe for appellant.

(1) The court should have granted the continuance as asked by defendant. Price v. People (Ill.), 23 N.E. 639; Miller v. State, 45 N.W. 451; State v. Butler 7 S. Rep. (La.) 669; Sims v. State, 21 Tex.App 649. (2) The court erred in refusing to allow appellant's attorney on cross-examination of the prosecutrix to develop the fact that Officer Anton, had induced her to come to St Louis and institute and carry on the prosecution of appellant on this charge. State v. Montgomery, 28 Mo 594; State v. Brady, 87 Mo. 142; State v. Robb, 90 Mo. 30; Rocoe's Criminal Evidence, sec. 141; State v. Howard, 14 S.E. (S. C.) 487; People v. Dixon, 94 Cal. 255; People v. Thonsen, 92 Cal. 506; Geesley v. Railroad, 32 Mo.App. 413. (3) The court erred in allowing the circuit attorney, over appellant's objection to re-examine the prosecutrix about some underclothing found at the place where the alleged rape occurred, and to offer same in evidence before the jury. (4) The court erred in allowing the circuit attorney, over appellant's objection, to show the condition of the prosecutrix at a time when she was alleged to have been in the room of one Mrs Louisa Harris, in the month of November, 1892, and in allowing said witness to describe her physical condition. Wharton on Evidence, sec. 259; 21 American and English Encyclopedia of Law, pp. 99, 102. (5) The court erred in permitting the circuit attorney to disguise the prosecutrix and other witnesses before presenting them to the witness for the defense to be by them identified -- and in refusing to call them forth into the presence of the court and jury for the purpose of identification until the circuit attorney had time to disguise them, and until he was permitted to first cross-examine the witnesses. (6) The court erred in permitting the circuit attorney to call Officer Anton after the case had been closed on both sides, against appellant's objection, and in allowing said officer to testify that "when arrested appellant's pants were open and he had his penis in his hand." Craighead v. Wells, 21 Mo. 404; Babcock v. Babcock, 46 Mo. 243. (7) The court erred in refusing to give an instruction touching the appellant's good character and reputation. Revised Statutes, 1889, sec. 4208; State v. Mathews, 20 Mo. 55; State v. Hardy, 7 Mo. 607; United States v. Means, 42 F. 599; Jackson v. State, 51 N.W. 89; State v. Palmer, 88 Mo. 568; State v. Banks, 73 Mo. 592; State v. Branstetter, 65 Mo. 149. (8) The court erred in declaring the law of the case to the jury in instruction number 4. State v. Perkins, 11 Mo.App. 82; State v. Cunningham, 100 Mo. 382. (9) The court erred in giving instruction number 5.

R. F. Walker, Attorney General, Morton Jourdan, assistant, and C. O. Bishop for the state.

(1) The first error suggested in the motion for a new trial is the overruling of the application for a continuance. There was no exception saved to the action of the court. State v. Stevenson, 93 Mo. 91. (2) The motion also suggests error in the empaneling of the jury, permitting prejudiced persons to be selected over appellant's objection; also, improper conduct of the circuit attorney in his closing argument; also, misconduct of the jury. There is nothing in the record to sustain these suggestions of error. Allegations made in a motion for a new trial are not self-probative. State v. Hultz, 106 Mo. 41. (3) The seventh suggestion of error, that the court erred in admitting evidence offered by the prosecution against the objection of appellant, is not well made. State v. Adams, 108 Mo. 208; State v. Porter, 26 Mo. 201; State v. Parker, 106 Mo. 217. (4) The court did not err in excluding evidence offered by defendant. State v. Douglass, 81 Mo. 234; State, etc., v. Leland, 82 Mo. 231. (5) The instructions properly declared the law.

Gantt, P. J. Burgess, J., concurs; Sherwood, J., in all except the seventh paragraph, as to which he does not dissent, but will express his views in a separate opinion.

OPINION

Gantt, P. J.

The defendant in this case was indicted at the October term, 1892, of the criminal court of the city of St. Louis. The defendant together with one Patrick Duffy was charged with the rape of Mrs. Ellen Rose, a woman over fourteen years of age, at the city of St. Louis, on the second day of November, 1892. The indictment was returned on November 3, and, for want of time to hear the cause at the October term, was continued to the November term. At the November it was again continued "as on affidavit" and specially set down for January 30, 1893. A severance was granted defendant on January 4. On January 30 defendant was arraigned, his plea of not guilty entered, a continuance refused, and cause set down February 6, at which time both sides announced ready, and cause tried to a jury and defendant convicted and his punishment assessed at thirty years in the penitentiary.

The evidence in this case is such as to cause a regret that it should ever find a place among the records of this court. Certainly it is such that should not stain the published reports. For the purposes of this opinion, it is sufficient to say that the evidence discloses that on November 2, 1892, Frank T. Rose and his wife, Ellen Rose, came from their farm near Falling Springs in St. Clair county, Illinois, with a wagon load of produce consisting of vegetables, butter, eggs and honey. During the day they sold their produce and about five o'clock started for their home, by way of the Cahokia ferry, their usual route. When they reached the ferry, they were informed by the ferryman that he would make no other trip that night.

While considering whether they should go up the river and cross the bridge, they were persuaded by one Schweigeler, who kept a lodging house and saloon, to stay all night with him. His establishment was on the levee between Anna and Sidney streets, near the ferry landing. They put up their horse, had their supper, and after supper Mrs. Rose concluded that she would visit a relation of hers on Papin street, some distance up the city. Mr. Rose was suffering from rheumatism and the weather was cold, with a drizzling rain prevailing, and on this account did not accompany his wife. Mrs. Rose was then about fifty-eight years of age, the mother of six children. Leaving her husband, she went to Broadway, thence north until she reached the French Market. Here she was overtaken by the rain and took refuge in the Market near the junction of Broadway and Chouteau avenue. On account of the rain, she abandoned her visit to her relative and after the rain started to return to her husband. She, however, stopped at a grocery store where she had had some dealings. It appears to have been after eleven o'clock when she reached Anna street on her return. On Anna street she met or passed two police officers, Anton and Manger. Of these she inquired the way to Schweigeler's and they directed her to go down Anna street to the river. When she had gone about two blocks east of Anna, after passing the officers, she was suddenly seized by two men and forcibly carried into a lumber yard and according to her evidence, cruelly outraged.

Her evidence is corroborated by Officer Anton, who, on his return to that vicinity of his beat that night, heard her groans. Being attracted thereby, he went into the lumber yard where he discovered this defendant on top of Mrs. Rose, and heard his obscene expressions. Immediately by him, only about four feet distant, sat his codefendant, Duffy. The officer hurried to the spot and gave defendant two or three strong slaps with his club, and arrested both defendant and Duffy. He testifies that during all this time Mrs. Rose was groaning as if in great pain. Her clothing was covered with mud; her underclothing bloody and torn; her nose bleeding and bruised, and when she reached the police station there were marks showing she had been choked severely. Mrs. Harris, the police matron, who saw Mrs. Rose during the forenoon of that day, (November 3) fully corroborated the facts as to her bruises and bloody condition and the mud on her clothing.

Defendant's defense was very equivocal. Having been caught by the officer and kept under arrest, he made no attempt to deny that he and Duffy were with Mrs. Rose, but sought to make the impression that she solicited them to receive these favors of her, unsolicited by them. When asked in chief by his counsel, if he ravished her or if he had connection with her, his answer was, "No sir, not then." Later on he denied that he either raped her or had connection with her at all, voluntary or otherwise. He admitted, however, that when the officer, Anton, appeared on the scene, he was lying by the side of the old lady, in the lumber yard, on the wet ground, in a misty rain.

It was also a part of the defense that Mrs. Rose was intoxicated that night. As to this, her husband swore she was perfectly sober when she left him to go up town. Both Anton and Manger the officers, swore she was not drunk or at least had none of the signs of intoxication about her when she passed them about midnight, on Anna street. Mrs. Harris, the matron, says she had no appearance of having been drunk next morning. It was attempted to show by a saloon keeper and two or three other witnesses that about twelve o'clock that night she was in the saloon of one Menge; that while there she drank three glasses of beer and called for the fourth which was refused her. Menge identified Mrs. Harris, the matron, as the woman who was in the saloon, but, as soon as he discovered that it was the matron,...