State v. Payne
| Decision Date | 06 March 1906 |
| Citation | 92 S.W. 461,194 Mo. 442 |
| Parties | STATE v. PAYNE. |
| Court | Missouri Supreme Court |
Appeal from Criminal Court, Greene County; James T. Neville, Judge.
Hiram Payne was convicted of assault with intent to commit rape, and he appeals. Affirmed.
This cause is here for review upon appeal from a judgment of conviction of the defendant in the criminal court of Greene county, Mo. The only assignment of error to which our attention is directed in the brief of counsel for appellant being that the indictment is insufficient to support the judgment it is well to here reproduce it. Omitting formal parts, it thus charges the offense: "The grand jurors of the state of Missouri, impaneled, sworn, and charged to inquire within and for the body of Greene county, upon their oath, presents that Hiram Payne, late of Greene county, and state aforesaid, on the 21st day of November, A. D. 1903, at the county of Greene, and state of Missouri, did then and there unlawfully and feloniously make an assault in and upon the body of one Jennie Tuttle there being, with intent her, the said Jennie Tuttle, then and there unlawfully forcibly and against her will, feloniously to ravish and carnally know, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of state." The record in this cause discloses that Hon. James J. Gideon, judge of said criminal court, disqualified himself, and Hon. James T. Neville, judge of the Twenty-Third judicial circuit, was called in to try said cause. After a mistrial at the January term, 1904, defendant was again tried at the March term, 1904. At said term the prosecuting attorney filed a motion, supported by an affidavit, alleging that the sheriff was biased in favor of the defendant, and praying that he be set aside and that the coroner summon a jury. This motion was sustained by the court. Then defendant filed a motion, supported by affidavit, alleging that the coroner was biased against the defendant, and praying that he be set aside, and that some suitable person be appointed elisor. This motion was by the court sustained, and B. W. Lamb, a disinterested person, possessing the required qualifications, was appointed elisor, and summoned the jury, a special venire being summoned on motion of defendant, and the trial proceeded.
The evidence on the part of the state tended to show: That Jennie Tuttle, the prosecutrix, was about 16 years old and was employed as a house girl at a boarding house kept by Mr. and Mrs. Weddell, in the city of Springfield. There were some five or six unmarried men who boarded at said house, among whom was defendant. That for perhaps several weeks prior to the alleged assault there were friendly relations existing between defendant and prosecutrix, and they were frequently seen together about the house and on the front porch, and that they had been engaged about one week. On Saturday night, November 21, 1903, the prosecutrix stated to Mrs. Weddell (whom all the witnesses call "Grandma") that she was going with Miss Bertha Burks, who lived just across the street, to attend preaching at the Latter Day Saints' Church. After going up in town prosecutrix and Miss Burks learned that there was no service that night at said church, so they went to the Herr dry goods store to see the opening of new winter goods. There they met Ira Weddell, who was a son of Grandma and Grandpa Weddell, and who lived at the same home with them. After going around in the store they all went out on the street and met Jones, who also boarded at the Weddell house, and later on defendant came up. Defendant and Weddell made arrangements to take the girls home. Weddell and Miss Burks walked together, and defendant and prosecutrix walked together. The latter couple walked some distance behind. Prosecutrix was a stranger in Springfield, was unacquainted with the names and locations of the streets, and did not know what part of the city they were in. After walking some distance Weddell and Miss Burks turned off of the street that defendant and prosecutrix were on, but defendant and prosecutrix kept on going along said street, which was in the opposite direction from the Weddell home. Prosecutrix asked defendant if they were going the right way, and defendant assured her that he knew the way, and would not take her wrong. After reaching a distant and lonely place near the cemetery, defendant began to talk love to prosecutrix. He took hold of her arm, made her stand still, and said: Prosecutrix told him that she was not that kind of a girl, tried to get loose from him, but he held on tight and threw her to her knees. She screamed and defendant let go of her; but, as soon as she got up, he grabbed her again and threw her down on her elbow. She again screamed, and defendant choked her, smothering her breath, and hit her twice in the back. In the meantime defendant either threw prosecutrix to her knees, or she fell to her knees and defendant tried to raise her dress. Prosecutrix knocked his hand away, and defendant said: "Jennie, if I had a pistol, I would blow your brains out." Prosecutrix replied: As soon as she got away from defendant prosecutrix started back up the street and ran as fast as she could, but defendant overtook her. He jerked her around, and said: "If you ever tell on me, I will blow your brains out." Defendant kept in sight of prosecutrix till they reached the Berry boarding house, when he told her to wait till he went in there a minute. As soon as defendant went in the front door, prosecutrix ran away and walked to the Weddell home which was in a distant part of the city, reaching there at 1 o'clock a. m. As soon as she reached there, prosecutrix went to the bedroom of Mrs. Weddell, waked her up, and told of the assault which defendant had made. Mrs. Weddell was so sleepy she either did not understand or did not want to be bothered, so she refused to let prosecutrix finish her complaint. Then Ira Weddell, who had been home for some time, came into the sitting room and prosecutrix told him of the assault. On the next morning prosecutrix made complaint to Grandpa Weddell. Defendant did not return to the Weddell house till about 11 o'clock the next day, Sunday, when he went to his room and threw himself on the bed. Grandpa Weddell went in his room and said: Defendant replied that he need not cry about it; that he did not care anything about Jennie now. Mr. Weddell then told defendant that he could not stay in his room any longer, so defendant left. The next day, Monday, defendant returned and said to Mr. Weddell: Mr. Weddell suggested that he ask the Lord for forgiveness, and wanted to know what defendant was going to do about this scrape with Jennie. Defendant said: When Mr. Weddell said that defendant had done mighty wrong, defendant said: That on Monday prosecutrix refused to talk to defendant, but made complaint to a justice of the peace, and a warrant was issued at 9 a. m. The state's evidence...
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