State v. Pinkard

• Decision Date: 12 December 1927
• Docket Number: No. 28368.,28368.
• Citation: 300 S.W. 748
• Parties: STATE v. PINKARD.
• Court: Missouri Supreme Court

300 S.W. 748

STATE v. PINKARD.

No. 28368.

Supreme Court of Missouri, Division No. 2.

December 12, 1927.

Appeal from Circuit Court, Carroll County; Ralph Hughes, Judge.

Frank Pinkard was convicted of assault with intent to commit rape, and he appeals. Affirmed.

Sam Withers, of Carrollton, and John D. Taylor, of Keytesville, for appellant.

North T. Gentry, Atty. Gen., J. D. Purteet, Sp. Asst. Atty. Gen. (John T. Morris, of Carrollton, of counsel), for the State.

HENWOOD, C.

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 4 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 17 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 13 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 any one, 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 demands, and in which he asked her to hang something white out of her bedroom window if she wanted him "to stay"; that she showed the note to her mother and then put out the sign as suggested; that he came to her room that night, got in bed with her, put his arm around her shoulders and neck, pushed up her gown, got on top of her, tried to force her legs apart, and tried to have intercourse with her; that she tried to get away from him and he said, "Come across; I am not going to have any of that; it's not too late to do what I say;" that he was on top of her "quite awhile" and tried to enter her private parts with his private parts, and that when he got off there was "something damp, wet," on her privates; that appellant weighed about 150 pounds and she weighed about 100 pounds at that time. And her testimony further shows that she reported all of these occurrences to her mother and that when the sheriff came to arrest appellant on July 1, 1926, she told him of appellant's threats and of his mistreatment of her, in the presence of her mother and other persons. On cross-examination, she admitted that her lather had complained about her being out late at night in company with young men and about her dresses being too short, but she denied having any ill feeling toward her father for any reason except the "improper things" he tried to do to her.

Catherine Pinkard testified that she slept with Christine on the night of June 30, 1926; that she was awakened by Christine's "movement in the bed" and saw her father talking to Christine.

Mrs. Cora Dougherty testified that on July 1, 1926, she telephoned for the sheriff at the request of Christine's mother and heard Christine tell the sheriff that her father attempted to rape her.

Appellant took the stand in his own behalf and denied that he ever solicited Christine to have intercourse with him or ever assaulted her with that intent. He also denied writing the note which Christine said she found in the coffee can and which was offered in evidence by the state. He said he had "some disagreement" with Christine in the summer of 1925 about "her courtship and the way she wanted to dress and go out"; that he "had objected to her being out so frequently at late hours." And he further said that "she just gave me to understand that, if she couldn't wear her clothes that way, she wouldn't wear them any way, and proved it by her actions." When asked if she made any threats, he said, "When I told her that she either had to quit being out so late at night or quit keeping company, she said she could quit, but I would regret it."

Appellant's sister, Mrs. Yowell, was offered ac a witness in his behalf, and testified that, while she was at appellant's home in the fall of 1925, Christine told her of appellant's proposals of intercourse, but said nothing about his coming to her room.

Mrs. Haner, appellant's aunt, was another witness in his behalf. She testified about the contents of a letter written by Christine to her, which she was unable to find and produce at the trial. She said Christine stated in the letter that "they had daddy arrested as a last resort, that he had threatened to kill them, and that he was going to put his threats in execution"; and also that Christine's letter stated, "So far as daddy touching me, he never touched me."

Seven of appellant's neighbors and acquaintances testified to his good reputation for morality and his good treatment of his family.

I. Learned counsel for appellant vigorously attack the sufficiency of the evidence. They contend with great earnestness that the evidence presents only a case of solicitation and attempted persuasion and fails to show appellant's intention to accomplish his purpose at all hazards and to overcome any and all resistance, and that, therefore, there is a failure of proof to support the charge of assault with intent to commit rape on which lie now stands convicted.

Assuming counsel's view of the facts to be correct, their contention is sustained by well-established authority in this state. But, as we view the facts, the cases on which they rely have no application here. True, appellant did, for a long time, solicit and attempt to persuade the prosecutrix to allow him to have sexual intercourse with her, but he...