State v. Murrell
| Citation | 289 S.W. 859 |
| Decision Date | 20 December 1926 |
| Docket Number | 27430 |
| Parties | STATE v. MURRELL |
| Court | United States State Supreme Court of Missouri |
Chas E. Prettyman, Jr., of Neosho, and Neale & Newman, of Greenfield, for appellant.
North T. Gentry, Atty. Gen., and Claude Curtis, Sp. Asst. Atty Gen., for the State.
By an information in two counts, appellant was charged with forcible rape upon one Ona Maynard, in Newton county, on September 7, 1925, and with having carnal knowledge of said Ona Maynard, an unmarried female of previously chaste character between 16 and 18 years of age. Both counts were based upon the same act of alleged sexual relations. The jury found appellant guilty under the second count and assessed his punishment at a term of 2 years in the penitentiary. From the judgment and sentence rendered on such verdict, an appeal was granted to this court.
The uncontradicted testimony offered by the state tended to prove that Ona Maynard, the prosecutrix, was an unmarried female of previously chaste character. She was 16 years of age in June 1925. Appellant was a man over 16 years of age. Prosecutrix lived with her father and mother at the Kansas City Southern Restaurant, located in Neosho and across the street from the Kansas City Southern Station. Appellant was a brakeman on said railroad, with a run from Pittsburg, Kan., to Lanagan, Mo. When in Neosho, he took his meals at the restaurant operated by the parents of prosecutrix. He had been doing this for several months. Prosecutrix had assisted about the restaurant and knew him in that way.
Appellant testified that he was 38 years old. He had been married three times. He was divorced from at least one of those wives. He married the third wife in February, 1926, after the alleged assault was committed upon prosecutrix. He had two children, one of whom was about the age of prosecutrix.
On September 7, 1925, prosecutrix was helping at the Ozark Cafe, which seems to have been located on the north side of the public square in Neosho. Appellant ate his supper there that night. Prosecutrix had never gone out anywhere with appellant and had never kept company with any young man. She testified that she had finished her work and had eaten supper and was ready to leave the Ozark Cafe about 8:30 o'clock p. m. Myrtle Williams also worked at the Ozark Cafe and quit at about the same time.
Appellant met the two girls at the door of the cafe and the three walked east on the north side of the square. At the corner appellant told Myrtle Williams to go on home and tell the mother of prosecutrix that she was going to the show. Myrtle Williams then left them. It was too late by that time for the first show and too early for the second show and prosecutrix and appellant decided to walk around. They went north and east to Morse's Park and in so doing passed close to the home of prosecutrix. There was a tourist camp, a baseball field, and a swimming pool in the park. They went to the baseball diamond.
Appellant 'made love' to prosecutrix and made improper proposals to her and told her he would not let her go home until she let him do what he wanted to do. According to the testimony of prosecutrix, she resisted and screamed for appellant to stop, and, after scuffling a bit, he released her. She ran off and he followed her. She crossed the creek on a foot log and appellant again caught up with her at that place. He then threw her down and held her and this time forcibly ravished her. The details need not be recited, because the jury did not find that appellant was guilty of forcible rape.
According to the testimony of prosecutrix, it is very doubtful if the jury would have been justified in finding that prosecutrix resisted to the utmost the alleged assault of appellant. Under the testimony, the jury was probably justified in finding that the alleged resistance of prosecutrix was only half-hearted and tantamount to consent. Outside of her insistence that force was used, the testimony of prosecutrix made out a case of unlawful carnal knowledge of an unmarried female of previous chaste character, over 16 and under 18 years of age, as denounced by the Laws of 1921, p. 284a, § 3248. One count of the information charged appellant with that offense.
When prosecutrix reached home the night of the alleged assault she appeared to have been crying. Her hair was disordered and her clothes were wrinkled and dirty. The appellant followed her closely upon her return to her home. Prosecutrix was told by her mother to go to bed. Appellant ate some lunch and departed.
Prosecutrix did not make complaint to her mother until the following afternoon. An examination of prosecutrix by a physician two or three days after the alleged assault disclosed some swelling and a discharge from the vagina. The hymen was intact. The physician testified that the condition he found could have been caused, among other causes, by penetration of the male organ. Prosecutrix testified that she bled considerably. The physician testified that the membrane might have been lacerated and might have bled without destroying the hymen. Appellant's story, with the exception that he claimed prosecutrix sought his company and herself led the way to the park, agreed in the main with that of prosecutrix until they got to Morse's Park. He said they visited the tourist camp at the park and sat down for awhile and watched the campers. They were then within the range of the electric lights of the camp. It was here that prosecutrix said appellant first attempted to have intercourse with her.
Appellant said they then turned back and walked across the foot log and sat down upon it. This log bridge was close to the road and two automobiles passed within a few feet of them while they were seated upon the log. Appellant denied that he had sexual relations with prosecutrix, forcibly or otherwise, and denied that he made any effort or advances for that purpose. He admitted that, as they walked along in the park, he put his arm around prosecutrix and she put her arm about him -- nothing more. Prosecutrix testified that appellant told her not to tell or he would hurt her. Appellant made no effort to leave the country and he was arrested a few days later in the city of Neosho, while switching cars as a brakeman.
The father of prosecutrix testified that he was with the sheriff when appellant was arrested and that appellant then said to him, 'Why couldn't you have come to me and talked this over and settled it with me?' Appellant denied this conversation and called the sheriff to corroborate him, but was not corroborated. The sheriff said he did not hear the...
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