State v. Pinkard

• Decision Date: 12 December 1927
• Docket Number: 28368
• Citation: 300 S.W. 748,318 Mo. 751
• Parties: The State v. Frank Pinkard, Appellant
• Court: Missouri Supreme Court

300 S.W. 748

318 Mo. 751

The State v. Frank Pinkard, Appellant

No. 28368

Supreme Court of Missouri

December 12, 1927

Appeal from Carroll Circuit Court; Hon. Ralph Hughes Judge.

Affirmed.

Sam Withers and Jno. D. Taylor for appellant.

(1) There must be some evidence tending to show that it was defendant's intention to accomplish his purpose (rape) and to overcome any and all resistance at all hazards. State v. Priestly, 74 Mo. 24; State v Ousley, 102 Mo. 678; State v. Harney, 101 Mo 470; State v. Hayden, 141 Mo. 312; State v. Sholl, 130 Mo. 396; State v. Espenchied, 212 Mo. 515; State v. Riseling, 186 Mo. 521; State v. Bowers, 239 Mo. 431; State v. Fleming, 177 S.W. 299; State v. Osborne, 246 S.W. 878; State v. Remley, 237 S.W. 489; State v. McChesney, 185 S.W. 200. (a) An outcry and resistance are important elements of evidence and a failure of these goes far to disprove the charge either of rape or assault with intent; so also does a concealment of the act. State v. Witten, 100 Mo. 525; State v. Goodale, 210 Mo. 287. Mere solicitation or inducement to have sexual intercourse falls far short of an intent to rape. State v. Priestly, 74 Mo. 24. (2) The transactions testified to as having occurred in October, 1925, were erroneously admitted and prejudicial; they constitute no part of the res gestae and it was error to admit evidence, if true, of a separate and distinct offense for which the defendant was not on trial. They were too remote. 33 Cyc. 1483; State v. Scott, 172 Mo. 536. (3) The admission of the purported note over defendant's objection was error because it was not properly identified and was not shown to have been written by the defendant. (4) The evidence in this case was insufficient to warrant the conviction of the defendant for any offense and especially for the offense of assault with intent to ravish, nor was the prosecutrix corroborated as to any material evidence offered by her. (5) Instruction 2 given by the court is erroneous: (a) It is a comment on the evidence; (b) It undertakes to describe a different character of crime than that fixed by statute or charged in the information; and (c) It is in direct conflict with Instruction 12. (6) The verdict is not in legal form. There is nothing in the verdict to show that appellant here was the person on trial or the person convicted. At no place in the verdict does his name appear, or is any language used to identify this appellant as the defendant referred to in the verdict. (7) Upon the whole record defendant's demurrer to the evidence should have been sustained. State v. Goldstein, 225 S.W. 913.

North T. Gentry, Attorney-General, and J. D. Purteet, Special Assistant Attorney-General, for respondent; John T. Morris, of counsel.

(1) The trial court quite properly overruled appellant's demurrer to the evidence at the close of the case. The evidence was sub stantial and sufficient to warrant submission of the case to the jury. State v. Eddings, 71 Mo. 545; State v. Smith, 80 Mo. 518; State v. Shroyer, 104 Mo. 445; State v. Dalton, 106 Mo. 467; State v. Whitsett, 111 Mo. 202; State v. Prather, 136 Mo. 20; State v. Alcorn, 137 Mo. 121; State v. Shaw, 220 S.W. 861; State v. Wade, 268 S.W. 52; State v. Atkins, 292 S.W. 425; State v. Pierce, 243 Mo. 532; State v. Hoag, 232 Mo. 308; State v. Welch, 191 Mo. 186. Where the record shows substantial evidence of guilt this court is precluded from interfering with the ruling of the lower court or the jury's verdict. State v. Arnett, 210 S.W. 83; State v. Pfeiffer, 209 S.W. 927. Outcry and complaint are not elements of the crime of assault with intent to rape. Proof of same is not essential to a conviction. State v. Burgess, 259 Mo. 396; State v. Bigley, 247 S.W. 171. (2) Where prosecutrix's testimony as to the occurrence of the assault is clear and convincing, corroboration of her story by other witnesses is unnecessary. State v. Marcks, 140 Mo. 656; State v. Welch, 191 Mo. 186; State v. Dilts, 191 Mo. 675. The record shows substantial evidence of prosecutrix's complaint on the morning following the assault. Her story of the assault is clear and convincing and without conflict or contradiction, and is corroborated in some respects by her sister who was present in the bedroom. (3) The verdict finds defendant guilty as charged in the information and assesses his punishment. This is sufficient. It is a general verdict and is in the exact form of verdicts often approved by this court. State v. Julin, 292 Mo. 274.

Henwood, C. Higbee and Davis, CC., concur.

OPINION

HENWOOD

Appellant was tried and convicted in the Circuit Court of Carroll County for assault with intent to commit rape. The jury assessed his punishment at imprisonment in the penitentiary for four years. He was sentenced accordingly and appealed.

The prosecutrix or victim of the alleged assault was appellant's own daughter, Christine Pinkard. At the time in question she lacked four months of being seventeen years old. The family consisted of appellant and his wife and five girls and one boy, including Christine. The ages of the other children ranged from a baby girl less than a year old to the girl next to Christine, who was then thirteen years of age. They lived on a farm about four miles southeast of the town of Hale in Carroll County. The house in which they lived had six rooms, four downstairs and two upstairs. Appellant and his wife and the baby slept downstairs and Christine and the other children slept upstairs. Mrs. Pinkard had been in delicate health for a long time and Christine was "doing the house work and cooking." The mother died within a few months after the occurrence in question and before the trial of this case. On the night of June 30, 1926, the date alleged in the information, Christine and Catherine slept together in the south room upstairs. They had on no clothing except their nightgowns. As to what happened that night, Christine testified as follows:

"Q. Now what happened there? A. Well, I was awakened by hands on me.

"Q. Where were the hands? A. On my private parts.

"Q. That awakened you, did it? A. Yes, sir.

"Q. When you awakened who, if anyone, did you see there? A. My father.

"Q. The defendant here, Frank Pinkard? A. Yes, sir.

"Q. What was he doing? Just tell how he was situated. A. Well, he was up over me; had his knees on the bed.

"Q. Where was his hand? A. Had his hand on my private part.

"Q. Where was his face? A. It was up over me.

"Q. About how close was his face to yours? A. Oh, not very far, just a little ways.

"Q. When you discovered that, what did you do? A. I drawed my feet up and kicked him away.

"Q. What, if anything, did he say? A. He says 'Don't do that.'

"Q. Well, what did he do or say while he was up there? A. Well, he said he would make me come to his terms.

"Q. What did you say to that? A. I told him I wouldn't do it.

"Q. What further did he say? A. He said that I would see the time when I would be glad to.

"Q. When you were awakened where was your nightgown? A. It was pushed up.

"Q. Where was it when you retired that night? A. It was down over my limbs.

"Q. State where your father's hands were, or either of them? A. They were on my private parts, one of them was.

"Q. Where was he when you first knew that he was up there? A. He was up over me.

"Q. When your father came up this night of June 30, did he have any clothing on? A. He had on a shirt.

"Q. What kind of a shirt? A. A work shirt.

"Q. And the balance of his body, what condition was that in? A. It was unclothed."

She further testified that appellant came back to her room again that night and said "he had come to make peace;" that he then said to her, "What are your terms?", and she replied, "I am making no terms. I have none to make. Go back downstairs;" that she asked him what his terms were, "and he said that I was to give completely up to him, and he said that if I turned him down and made him blow his brains out, somebody else would go before he did;" that she told him she would give him her answer the next night, and the next day she had him arrested. And she further testified that for almost a year prior to this occasion appellant had made indecent proposals to her and had tried to have sexual intercourse with her. In this connection, she said:

"Well, if occasion came that there was just him and I and no one else around, he would just put his arm around me and then try to put his hands on my private parts."

"Well, on the occasions that he would put his hand up under my clothes and I told him to get away and he said he just wanted to love me."

"Well, he said, 'Are you going to keep treating me this way and never let me love you any?' and I said that I couldn't treat him any other way but the way I had been. I said that he had no right to treat me in such a manner, and it was wrong and harmful, and he said that he did have a right to, they didn't anybody else, but he did. He said I was his and he could do with me as he pleased. He also stated if I missed, to tell him, not to tell my mother, and I told him that I would have nothing to do with him in any way."

"He said that if I loved him, I would let him do what he wanted to, that I wouldn't object to anything that he wanted to do to me."

And it further appears from her testimony that twice during the month of October, 1925, appellant came to her bed upstairs in the nighttime and put his hands on her privates; that in the morning prior to the second of these occasions appellant called to her to get breakfast and she saw him going to the barn with a gun and a milk bucket as she came downstairs that when she opened the coffee can she found a note in appellant's handwriting and addressed to her, in which he threatened to kill himself unless she submitted to his...