State v. Osborn

• Decision Date: 08 May 1922
• Docket Number: No. 2944.,2944.
• Citation: 240 S.W. 820
• Parties: STATE v. OSBORN.
• Court: Missouri Court of Appeals

240 S.W. 820

STATE v. OSBORN.

No. 2944.

Springfield Court of Appeals. Missouri.

May 8, 1922.

Appeal from Circuit Court, Crawford County; L. B. Woodside, Judge.

Leonard S. Osborn was convicted of common assault, and he appeals. Transferred to the Supreme Court.

Frank H. Farris, of Rolla, and A. H. Harrison, of Steelville, for appellant.

Harry Clymer, Pros. Atty., of Steelville, for the State.

BRADLEY, J.

Defendant was charged by information with an assault upon Essie Pennock with intent to rape. On trial he was found guilty of common assault, and his punishment fixed at a fine of $1. Unsuccessful in his motions for new trial and in arrest he appealed.

Defendant makes several assignments, but relies upon four: (1) That the evidence is wholly insufficient to support the verdict; (2) that the court erred in excluding certain evidence offered by defendant; (3) that the court erred in instructing on assault with intent to rape; (4) that error was committed in certain remarks of the court to the jury.

1. The prosecuting witness is a married woman 25 years of age. She was staying at the home of her father-in-law, and her husband

was working in St. Louis. At the time of the alleged assault prosecutrix was on her way to a neighbor's house to telephone for a physician for her mother-in-law. She had gone about 150 yards from her father-in-law's house when she was overtaken by defendant, who was on horseback. Defendant spoke, called prosecutrix by name, asked about her husband, and a few other questions, and then asked if he could get down and walk with her. She told him he could not; that he was a stranger to her. Defendant, however, got down, and took hold of prosecutrix. They were at the time in the roadway, fence on both sides. Defendant succeeded in getting prosecutrix over by the fence. She freed herself, however, and went on her way. The alleged assault occurred on Friday, and prosecutrix made no complaint till Monday following. She came in contact with defendant on Sunday while returning from a baptising, and he took hold of her bridle rein and insisted on going out in the bushes, but she declined to go. The alleged assault was in daylight, in a much-traveled public road, and within 150 yards of the father-in-law's house. Defendant gives a different version of what occurred. He says that all he did was with the full consent of prosecutrix, and that, while attempting to have sexual connection with her, Involuntary emission occurred, and the effort at intercourse was abandoned. According to the version of prosecutrix there Is sufficient evidence to support the verdict for common assault. It is apparent from the verdict that the jury did not consider the assault very serious; but prosecutrix says that she did not consent, and other facts and circumstances do not wholly discredit her in that respect as was the case In State v. Eslick (Mo. App.) 216 S. W. 974.

2. Defendant states his second assignment as follows:

"Defendant by cross-examination of the prosecuting witness undertook to impeach her from her own testimony as to her conduct on the issue of chastity and virtue and general moral standing, and undertook to make inquiry of her with reference to her associations with other men, her habits and conduct generally, which was objected to by the state, and the objection sustained, and the defendant denied that right. This was error, for the defendant had a right to show any impeaching evidence respecting her chastity or virtue, because the same had a tendency to prove or disprove the acquiescence or lack of consent by plaintiff to the solicitations and conduct of the defendant."

The evidence excluded tended to show that the prosecutrix had recently been at places under suspicious circumstances. Defendant sought to establish that prosecutrix was at a summer resort with a man, and that her husband became suspicious. Defendant asked this question:

"I will ask you if, on this day, you didn't go down there to meet this Keeney boy, and while you were there if your husband didn't come down to where you were and say to you that if you thought more of this guy than you did of him that you could go with him, and handed you $12 in money, and left you?"

Objection was made on...