State v. Pipkin

• Decision Date: 08 June 1909
• Parties: STATE v. PIPKIN.
• Court: Missouri Supreme Court

120 S.W. 17

221 Mo. 453

STATE v. PIPKIN.

Supreme Court of Missouri, Division No. 2.

June 8, 1909.

1. RAPE (§ 57) — FACT OF PROSECUTRIX BEING UNMARRIED — QUESTION FOR JURY.

In a prosecution for carnally knowing an unmarried female, evidence as to prosecutrix being unmarried held sufficient to submit the question to the jury.

2. CRIMINAL LAW (§ 730) — TRIAL — ARGUMENT OF PROSECUTING ATTORNEY.

Though, in a prosecution for carnally knowing an unmarried female of previous chaste character, between 14 and 18 years of age, prosecutrix did not testify directly that defendant was the father of her child, her testimony that she had never had intercourse with any one else, if believed, showed that such was the case, and reversible error could not be based on the failure of the court to rebuke the prosecuting attorney for stating in his closing argument that she testified defendant was the author of her ruin, and the father of her child.

3. CRIMINAL LAW (§ 553) — CREDIBILITY OF WITNESSES — QUESTION FOR JURY.

It does not follow because only one witness testified to the offense, and four or five others testified to a state of facts tending to prove no offense was committed, that the jury was bound to believe the testimony of the majority of the witnesses.

4. CRIMINAL LAW (§ 554) — CREDIBILITY OF PROSECUTING WITNESSES.

That the prosecuting witness may have been mistaken as to the date of the offense would not invalidate her testimony.

5. CRIMINAL LAW (§ 1159) — REVIEW OF EVIDENCE IN RECORD.

It is the province of the appellate court to review the record; and, if there is substantial testimony which will support the verdict, it should not be disturbed, on the ground that the weight of the testimony seems to conflict with the jury's conclusion.

6. RAPE (§ 51) — EVIDENCE — SUFFICIENCY TO SUSTAIN CONVICTION.

In a prosecution for carnally knowing an unmarried female of previously chaste character between the ages of 14 and 18, evidence held sufficient to sustain a conviction.

Appeal from Circuit Court, Texas County; L. B. Woodside, Judge.

Robert Pipkin was convicted of carnally knowing an unmarried female of previously chaste character between 14 and 18 years of age, and he appeals. Affirmed.

The defendant has brought this case to this court by appeal from a judgment of the circuit court of Texas county, convicting him of carnally knowing an unmarried female of previously chaste character, between the ages of 14 and 18 years. The information substantially charges that Robert Pipkin was over the age of 16 years, and that he unlawfully and feloniously had carnal knowledge of one Sarah Ellen Bailey, an unmarried female, of previously chaste character, between 14 and 16 years of age; that is to say, of the age of 15 years. To this information defendant entered his plea of not guilty, and the trial proceeded. The testimony developed at the trial upon the part of the state tended to prove that Ellen Bailey lived with her father on Elk creek in Texas county, Mo.; that prosecutrix and defendant had known each other from childhood, and in May, 1906, defendant began calling at her home, and accompanying her to prayer meeting. On the second Sunday evening in June, 1906, defendant escorted prosecutrix to the Box schoolhouse, where prayer meeting was being conducted, and after the services closed they started to the home of prosecutrix, accompanied by a number of other persons. In returning to their home it was necessary to pass through a hollow, up a hill, and along a place where there is a bend or turn in the road. When the other persons, who were in front of prosecutrix and defendant, reached this bend in the road, and as they were passing same, defendant and prosecutrix stopped in the hollow, and had sexual intercourse. Defendant continued his attentions to prosecutrix, and in July following their illicit act was repeated. Counsel objected to evidence of further acts, and was sustained. On the 7th day of May, 1907, prosecutrix gave birth to a child. At the time of those improper relations prosecutrix was 15 years old and defendant was over the age of 16 years. Prosecutrix testified that no one except defendant had ever had intercourse with her, and that on occasions other than the one when her deflowering occurred defendant had accompanied her along the same road, and when practically the same crowd was with them. Emmet Tate, Dr. C. W. Harmond, J. W. Dickerson, E. W. Seers, John Tate, George Robertson, and M. Morgan all testified that they were near neighbors, and had been acquainted with prosecutrix for several years, and that her general reputation for chastity was good prior to this trouble. There was also testimony tending to show that Ellen Bailey was an unmarried female at the time it is alleged the offense was committed. On the part of the defendant Mrs. Ollie Morris, Albert Jackson, Clint Owens, Mrs. Dora Owens, and Mrs. Nannie Morris all testified that they attended prayer meeting at the Box schoolhouse on the first Sunday evening in June, 1906, and that on this occasion, and on the return trip home, they were in a crowd with defendant and prosecutrix when passing along the road where prosecutrix testified she and defendant first had intercourse, and that on this occasion defendant accompanied the prosecutrix, that some of the party was in front, and some in the rear of defendant and prosecutrix, all being in close proximity of each other, and that defendant and prosecutrix did not stop in the hollow, and that nothing of the nature described by prosecutrix took place on that occasion, and that this was the only time when they passed this place in company with defendant and prosecutrix. They also testified, as did other witnesses, that the reputation of the prosecutrix for virtue and chastity was bad, while defendant's reputation for honesty, truthfulness, and virtue was good. These witnesses all stated the respective positions of the various parties with reference to each other on that occasion of two years past, yet on cross-examination they were unable to state who else was at the prayer meeting, who conducted the same, or where they were at other times. They also testified that there was nothing happened, on the occasion referred to, to especially attract their attention thereto, or to cause their memory to be so charged with reference thereto. Lula Bryant testified that on the second Sunday in June, 1906, she met defendant at Sunday school, and that she and he went from there to the home of her grandfather, where defendant remained with her until about 8 p. m., and that defendant is still showing her marked attentions. Defendant denied having ever had intercourse with prosecutrix, but admitted accompanying her to the schoolhouse and back home on the first Sunday evening in June, 1906, but denied being with her on the second Sunday in June, as testified to by her. At the close of the evidence the court fully instructed the jury upon every subject connected with the commission of the offense to which the testimony was applicable. The cause being submitted to the jury, they returned their verdict, finding the defendant guilty as charged in the information, and assessed his punishment at three months' imprisonment in the county jail. Timely motions for new trial and in arrest of judgment were filed, and by the court taken up and overruled. Judgment was entered in accordance with the verdict, and from this judgment the defendant prosecuted this appeal, and the record is now before us for consideration.

Lamar & Lamar, for appellant. Elliott W. Major, Atty. Gen., and C. G. Revelle, Asst. Atty. Gen., for the State.

FOX, J. (after stating the facts as above).

The assignments of error as disclosed by the record, which are relied upon by the appellant as grounds for the reversal of this judgment, may thus be briefly stated: First, that the state failed to prove that the prosecutrix, Ellen Bailey, was an unmarried woman; second, that the court erred in refusing to rebuke the prosecuting attorney for the state for improper language used by him in the closing argument, by making statements to the jury concerning facts which were not in evidence; third, that the evidence developed upon the trial of this cause was insufficient to support the verdict and finding of the jury, and that the verdict as returned by the jury was manifestly the result of passion and prejudice.

1. It is insisted by learned counsel for appellant that there was no evidence that...