State v. Pollard

• Decision Date: 19 May 1903
• Parties: STATE v. POLLARD.
• Court: Missouri Supreme Court

74 S.W. 969

174 Mo. 607

STATE v. POLLARD.

Supreme Court of Missouri, Division No.

May 19, 1903.

RAPE—EVIDENCE—RES GESTÆ—STATEMENTS —WITNESS—CREDIBILITY—INSTRUCTIONS.

1. Evidence on a prosecution for defiling a female under the age of 18, confided to defendant's care, held sufficient to warrant a conviction.

2. A requested instruction on credibility, singling out one witness, and particular facts applicable to her testimony alone, is properly refused.

3. Statement of prosecutrix, in a prosecution for defiling a female under the age of 18, confided to defendant's care, that defendant forced her, made some time after the act, and elicited from her only after being pressed to tell what was the matter, is not admissible as part of the res gestæ.

4. Testimony of a witness on a prosecution for defiling a female under the age of 18, intrusted to defendant's care, that, after she went from prosecutrix's room to where defendant was, he offered her money, and she accepted it, not to tell his wife what had occurred, is competent.

5. Statement of a person, not in defendant's presence, on being told of the charge against him of intercourse with one of his hired girls, that defendant would not keep a girl unless he could have intercourse with her, is not only inadmissible, because of defendant's absence, but incompetent, being a mere expression of opinion.

6. To impeach a witness, evidence of his general reputation for chastity and morality, as well as for truth and veracity, is admissible.

Appeal from Circuit Court, Livingston County; J. W. Alexander, Judge.

George M. Pollard appeals from a conviction. Reversed.

Scott J. Miller, for appellant. Edward C. Crow, Sam B. Jeffries, and Jerry M. Jeffries, for the State.

FOX, J.

This cause was prosecuted on an amended information filed by John H. Taylor, prosecuting attorney of Livingston county, in the circuit court of that county, on the 23d day of September, 1902. The information charges the defendant, on or about the 10th day of August, 1901, with defiling, and, feloniously and unlawfully, carnally knowing, one Carrie Downing, a young girl of 14 years of age, who had been by her parents intrusted to his care, custody, confidence, and employment. There is no complaint urged against the information; hence there is no necessity of inserting it in this opinion.

The defendant, Geo. M. Pollard, was the proprietor of a hotel and lunchroom in Chillicothe, Livingston county, Mo. Carrie Downing, who was about 15 years old (the prosecuting witness), was confided to the defendant, by her parents, to work for him about the hotel and lunchroom. She testified that about the 10th day of August, 1901, the defendant, in a bedroom in the hotel, had intercourse with her. She made no outcry, as she states, because he was choking her. This occurred between 6 and 7 o'clock in the morning. It further appears that the windows to this bedroom, where the offense is alleged to have been committed, were open. It is further stated by the prosecuting witness that, after he had intercourse with her, she was sitting on the edge of the bed, combing her hair, and that Eva Enoch, one of the witnesses in this case, came downstairs, and went into the room where Carrie Downing was, and where she says the defendant committed the acts charged. Eva Enoch, a witness for the state, testified that, on the morning Carrie Downing says she was assaulted, Carrie called her, and "asked her how long before she would be down." She replied, "in about a half an hour." She further stated that she "suspicioned" something, and put on her dress and went down, without putting on her shoes. It further appears from her testimony that after coming down she went to the door of the bedroom; that there was a chair against the door; that Carrie removed the chair, and was sitting on the bed, crying, when she went in. The defendant was not in the room, but was out in the back yard. After entering the room, the witness and Carrie had a conversation. To this conversation, in the absence of defendant, counsel for defendant objected, which objection was by the court overruled, to which action of the court defendant duly excepted. Witness then proceeded to state that she "asked Carrie what was the matter, and she says she would not tell me. Then she told me that George had forced her." This last witness mentioned then left the bedroom and went out into the yard, where she met the defendant. She says the defendant offered her, and she accepted, $5, upon the condition that she would not tell his wife what had occurred. In addition to this testimony, numerous witnesses testify that the general reputation of the defendant for morality and chastity was bad. On the part of the defendant, he was sworn as a witness in his own behalf. His testimony was an absolute and unqualified denial of the statement made by the prosecuting witness and Eva Enoch. Mrs. Thomas testified that after this charge was made against the defendant the prosecuting witness was at her house, and stated to her that there was nothing in the charge against the defendant, that she was forced to make it, and that Jim Smith was the cause of it all. Other witnesses testified, whose testimony tended to show that defendant was on a trip to Kansas City about the time the prosecuting witness claims she was assaulted. Mrs. Bettie Rhodes testified that she was downstairs, in the kitchen, on the morning it is said this offense was committed. She was about 30 feet away from the bedroom, the windows were open, and there was nothing to prevent her from hearing any unusual noise. She further states that she did not see witness Eva Enoch come downstairs, nor did she see her downstairs on the morning that the prosecuting witness says she was assaulted. This constitutes, in the main, the testimony upon which this cause was submitted to the jury. Upon the trial of this cause, the jury returned a verdict of guilty, and assessed defendant's punishment at two years in the penitentiary. He was sentenced in pursuance of the verdict, and from this judgment this case is in this court upon appeal.

It is insisted by appellant that the court did not properly declare the law. We have examined with care and due consideration all the instructions given by the court, and will, in the course of this opinion, refer to them as necessity requires. We will say, however, that a very careful examination of them fails to verify the contention of appellant, and that we find them full, fair, and a proper presentation of the law, as applicable to the testimony in this cause.

It is urged that the court erred in refusing three instructions tendered by appellant.

The first instruction prayed the court to declare the law to be that, under the evidence in this case, the jury should find the defendant not guilty. While the testimony offered by the state is not so clear and convincing as not to render it subject to the criticisms indulged in by counsel for defendant, yet there was some testimony tending to establish defendant's guilt. The credibility of the witnesses and the weight to be attached to their testimony were matters to be determined by the jury. The court very properly refused to give that instruction.

The second, third, and fourth instructions asked by defendant and refused by the court are as follows:

"(2) The jury are instructed that they should consider the entire evidence in the case, introduced by the state and defendant, but the jury are at liberty to disregard the evidence of all such witnesses, if any there be, as have been successfully impeached, either by direct contradiction, or by proof of having made different statements.

"(3) The court instructs the jury that, under the law, a witness can be impeached by proof of having made contradictory statements, and if you believe, from the evidence, any witness has made contradictory statements about material evidence in this case, you are at liberty to disregard all of such witness' testimony.

"(4) The court instructs the jury that, in determining the degree of credit to be given the evidence of the prosecutrix in regard to the alleged defilement, it is competent to consider the conduct of the prosecuting witness at and about the time thereof, the length of time that elapsed after the said defilement had been committed before she made it known, the cause for making it known, the fact that she was in defendant's company continually, or nearly so, after the alleged offense, for months or more, without complaint against him, along with all the other facts and circumstances in evidence."

As the second and third instructions are practically directed to the same subject (that is, as to the manner of measuring and weighing the testimony of witnesses testifying in the cause), we will treat them jointly. There is no merit in the contention of appellant as to the refusal of these instructions. Instruction No. 7, as given by the court, fully covered the subject as suggested in instructions Nos. 2 and 3. This being true, it needs no citation of authorities to support the position that there was no error in refusing those offered. Instruction No. 7 substantially told the jury: "To the jury alone belongs the duty of weighing the evidence and determining the credibility of the witnesses. The degree of credit due to a witness should be determined by the jury by his or her character and conduct, by his or her manner upon the stand, his or her fears, his or her bias or impartiality, the reasonableness or unreasonableness of the statements he or she makes, the strength or weakness of his or her recollection, viewed in the light of the other facts and circumstances in proof; and, if the jury believe that any witness has willfully sworn falsely as to any material fact in the case, they may disregard the whole of the evidence of any such witness." Instruction No. 4, as offered by appellant, was properly refused. This instruction singled out one witness, and also...