State v. Pierce

• Decision Date: 01 June 1912
• Citation: 147 S.W. 970
• Parties: STATE v. PIERCE.
• Court: Missouri Supreme Court

147 S.W. 970

STATE v. PIERCE.

Supreme Court of Missouri, Division No. 2.

June 1, 1912.

1. CRIMINAL LAW (§ 223) — PRELIMINARY EXAMINATION—RIGHTS OF ACCUSED.

One charged with an ordinary felony is not entitled to a preliminary examination before a committing magistrate.

2. CRIMINAL LAW (§ 769)—INSTRUCTIONS.

Under Rev. St. 1909, § 5244, authorizing the court to instruct on any point of law in the case, the court should declare the law in the plainest language possible and avoid needless comments on the evidence and subtle definitions of terms such as reasonable doubt.

3. RAPE (§ 15) — ATTEMPTED RAPE—ACTS CONSTITUTING.

To constitute the crime of attempt to rape it is not necessary that accused should in fact overcome all resistance of his intended victim, but, where he actually makes an assault with the intent to overcome all resistance the prosecutrix can offer, the crime is complete, but the force used by accused must be actual and not mere solicitation or peaceable persuasion.

4. RAPE (§ 15) — ATTEMPTED RAPE—ACTS CONSTITUTING.

Where accused took prosecutrix to a place where he thought no one could see him nor hear any outcry from her, and in spite of her most vigorous objections he threw her on the ground and by holding her hands attempted to force her to submit to sexual intercourse, there was a prima facie case of attempt to rape, and the fact that prosecutrix was resolute and stout enough to successfully resist

accused's brutality did not purge him of the crime which he intended to commit when he began the assault.

5. CRIMINAL LAW (§ 1159)—VERDICT—CONCLUSIVENESS.

The jury are the judges of the evidence, and the court on appeal will not disturb a verdict in the absence of any indication of their failure to weigh the evidence correctly and return a proper verdict.

Appeal from Circuit Court, Ray County; F. H. Trimble, Judge.

Clarence Pierce was convicted of assault with intent to rape, and he appeals. Affirmed.

Defendant was convicted of the crime of assault with intent to ravish one Ruth Oldham in Ray county, Mo. He appeals from a judgment of the circuit court of that county fixing his punishment at two years in the penitentiary.

The defendant, a farmer 27 years old, resided with his grandmother. Prosecutrix, 18 years old, lived with her father on a farm near defendant. Both of them bore a good reputation prior to the commission of the crime of which defendant was convicted.

Defendant was a suitor of prosecutrix for a period of 20 months prior to August 1, 1911. He frequently took her in his buggy to church and also to nearby towns. According to the evidence of both parties, their courtship had not ripened into an engagement, and their conduct was not considered in any way unusual, except that they were sometimes out buggy riding until a late hour at night.

About 3 p. m. on August 1, 1911, prosecutrix started with defendant ostensibly to drive to the town of Lawson about 11 miles distant to do some trading. After arriving at a road which led to Excelsior Springs, defendant decided to go to that point instead of Lawson in order that he might telephone his mother who was then at Kansas City. They arrived at Excelsior Springs about 6:30 p. m. after the stores had all closed so that prosecutrix could not make the purchases she desired. While at the Springs defendant left prosecutrix for about three-quarters of an hour while away on some unexplained errand. About 8 p. m. defendant and prosecutrix started for the home of prosecutrix some 13 miles distant. Up to this point there is no conflict in the testimony. Prosecutrix testified that at a lonely place on the road defendant suddenly threw his arms around her and commenced kissing her and trying to raise her dress. She slapped him in the face and tried to make him behave himself, but he became so persistent in his lascivious advances that she threatened to jump out of the buggy and walk home. Finally she did jump out, and defendant, after hitching his team, ran after and caught her, when after a severe scuffle he succeeded in throwing her to the ground, raising her dress, and touching her with his private parts. She claims to have screamed and fought the defendant by striking him in the face and pulling his hair to such an extent that after a few minutes he desisted from his attempt to have intercourse with her against her will and began looking for his ring and pipe which he claimed to have lost in the scuffle. During the assault, defendant told prosecutrix to scream all she wanted to, that there was not a house within three miles. Prosecutrix got in the buggy and was driven home by defendant. They reached her father's home about the hour of 1 a. m. and she then informed defendant she never wanted to see his face again. Prosecutrix then went to bed with her sister and made no complaint of the assault until the following evening when she told her sister. Other members of the family were not informed of the assault until 13 days afterward when this prosecution was instituted.

The report of the attempted assault spread rapidly through the neighborhood, but just how the report was first started does not fully appear. Some days after the crime an old man named Newt McAdams, who cultivated the same farm where defendant resided, asked defendant why he attempted to have intercourse with prosecutrix when she was not willing to submit to such conduct. Defendant did not deny the criminal conduct attributed to him, but gave a vulgar answer indicating that his acts were inspired by uncontrollable lust. In a conversation with Lawson Cox, another neighbor, regarding some witnesses summoned before the grand jury, defendant said, "If that girl tells what she knows, I will be in a pretty tight box."

The morning after the alleged crime the defendant seemed to be in a worried and peevish mood. He was asked by one Mabel Brown who was living with his grandmother why he swore at such trifles as breaking a shoestring, to which he replied that that was not what really worried him; that he was full as a goose last night and lost his ring and pipe. Witness asked defendant what he was doing the night before. To which he replied that he "done enough to put him in the penitentiary all right. If that d—d fool keeps her mouth shut, I will be all right." Witness did not explain who defendant referred to by this last remark, but, as he had been with no...