State v. Perkins

• Decision Date: 18 October 1881
• Citation: 11 Mo.App. 82
• Parties: STATE OF MISSOURI, Respondent, v. WILLIAM PERKINS, Appellant.
• Court: Missouri Court of Appeals

11 Mo.App. 82

STATE OF MISSOURI, Respondent,

v.WILLIAM PERKINS, Appellant.

St. Louis Court of Appeals, Missouri.

Oct. 18, 1881.

In the absence of evidence of threats, or of any force to overcome resistance, or of the utmost resistance on the part of the prosecuting witness, a conviction for rape will be set aside.

APPEAL from the St. Louis Criminal Court, LAUGHLIN, J.

Reversed, and defendant discharged.

T. B. HARVEY and C. O. BISHOP, for the appellant.

J. R. HARRIS, for the respondent.

LEWIS, P. J., delivered the opinion of the court.

The defendant was convicted upon an indictment for rape, and sentenced to a term of ten years in the penitentiary.

The crime of rape is so revolting to the moral instincts of civilized society that courts and juries are but too apt to lose sight of some of the barriers which the law has undertaken to interpose against an improper conviction. A strong sympathy, and pity for the victim are effectual to exclude all toleration of the wretch who is supposed to have blighted an innocent life for the momentary gratification of a brutal passion. Even the moral crime of the seducer deserves, in the estimation of many, all the punishment which the law has reserved for the forcible ravisher. Thus it sometimes comes about that the triers of such a charge as this seem to reverse the ancient maxim, and to hold that it were better for ninety-nine innocent men to suffer than that one guilty should escape. We are told upon high authority that an accusation of rape is one “easily made, hard to be proved, and still harder to be defended by one ever so innocent.” Our supreme court has, in two notable instances, illustrated the weight of these considerations, in setting aside verdicts of conviction, because of insufficiency in the proofs before the juries. The State v. Burgdorf,53 Mo. 65; The State v. Jaeger, 66 Mo. 173. The present case seems to offer a like opportunity for the judicial correction of a hasty and unauthorized conclusion. It seems almost incredible that an intelligent jury could be found to convict a prisoner of rape upon such testimony as was given by the prosecuting witness in this case.

It must be remembered that, as was said in The State v. Burgdorf ( supra), the crime under consideration can only be committed where there is on the part of her on whom the attempt is made, “the utmost reluctance and the utmost resistance.” Any element of consent, however slight, or of passive submission not enforced by violence or induced by fear, will destroy all legal criminality in the act. So much is clearly implied in the statutory expression, “forcibly ravish,” and such has always been the effect authoritatively given to these words.

The prosecutrix was fifteen years of age, and described by a physician as “a healthy girl in every way.” She testifies, in effect, that she was employed in the service of one Goldsmith, who kept a boarding-house for men, on the levee, in St. Louis. She slept in the kitchen, which was directly under a room occupied by a number of lodgers, and a room occupied by the proprietor and his wife. At eleven o'clock in the night she was sleeping, when the defendant entered and blew out a lamp which was burning in the room. He then got upon her bed and committed the act complained of. She proceeds to relate that he remained with her a full hour, during which time the act was repeated four times. In the intervals, he stood by the bed or sat upon a chair near by. She says that she “hollered,” and the defendant placed his hand upon her mouth. That, altogether, his hand was so upon her mouth for the space of five minutes. That he also held her hands tight. This is the sum of all the force used by him, and of her resistance, during a visit of one hour's duration. There was no threat or intimidation. The defendant said...