State v. Remley

• Decision Date: 18 February 1922
• Docket Number: No. 23332.,23332.
• Parties: STATE v. REMLEY.
• Court: Missouri Supreme Court

237 S.W. 489

STATE v. REMLEY.

No. 23332.

Supreme Court of Missouri, Division No. 2.

February 18, 1922.

Appeal from Criminal Court, Jackson County; E. E. Porterfield, Judge.

Charles Remley was convicted of rape, and he appeals. Reversed and remanded.

The prosecuting attorney of Jackson county, Mo., on September 9, 1920, filed an information in the criminal court of said county, charging therein that defendant, on August 22, 1920, in the county and state aforesaid, did forcibly and against her will ravish and carnally know Dorothy Giboney, etc. Defendant was formally arraigned, and entered a plea of not guilty. He was tried before a jury, and on December 1, 1920, the following verdict was returned against him:

"We, the jury, find the defendant Charles Remley guilty of rape as charged in the information, and assess his punishment at ten (10) years in the state penitentiary.

                                  "C. W. Fields, Foreman."
                

State's Evidence:

Dr. Walter M. Clements, on behalf of the state, testified that he examined the sexual organs of Dorothy Giboney, on August 23, 1920; that he found her genital organs swollen, full of blood, and bleeding; that some of the blood was on her underclothing, which he delivered to Dr. Ibler for examination.

Dr. W. R. Ibler testified that he examined the above underclothing, and found thereon male reproduction substance, called spermatozoa.

Dorothy Giboney testified, that she was sixteen years of age on July 20, 1920; that she saw defendant at a dry goods store on Saturday, August 22, 1920; that she and defendant, on Saturday evening, walked out to Ashland Park, and remained there until about 6 o'clock the same evening; that she was with Helen Morris the next afternoon, and they met defendant; that she (Dorothy) and defendant left the above girl and went into Ashland Park about 4 o'clock in the afternoon; that they walked around, until they got back of the schoolhouse; that they then sat down and remained there all night. She then testified in chief as follows:

"Q. And after you got down there what did the defendant Remley do? A. He raised up my dress.

"Q. What did you do? A. I told him to stop.

"Q. Then what did he do? A. He just kept on.

"Q. Then what finally happened? * * * Did he get you down on the ground? A. Yes, sir.

"Q. How did he get you down on the ground? In what way? A. He shoved me.

"Q. He pushed you down on the ground? A. He did.

"Q. Then you say he raised up your dress? A. He did.

"Q. Did he have intercourse with you? (Unanswered.)

"Q. What did he do at that time, if anything? Did he do anything at that time? A. No, sir.

"Q. What did he have in his hand, if anything? A. He had a knife.

"Q. Where did he put that knife? A. In his hand.

"Q. Was that at the time he pushed you over on the ground? A. We were sitting down then.

"Q. At that time?

A. Yes, sir.

"Q. Did he say anything to you about telling your folks what had happened? A. He did not.

"Q. Just go on and relate what happened after that. A. We were sitting there talking, and I said, there is something down there right behind the trees, and so he took out his knife, and he says, `I will go down there and see;' and he went down and came back, and he wanted me to feel of it, and so I felt of it.

"Q. Then what did he do after that? Did he still have the knife out? A. No, sir; he put it back in his pocket.

"Q. What did he do after that? A. He raised up my dress again.

"Q. Do you know about what time of the night that was? A. No, sir; I don't.

"Q. Was it after dark? A. Yes, sir.

"Q. What did you do when he was raising up your dress? A. I tried to struggle.

"Q. Were you sitting upright, or how were you arranged? A. I was lying down.

"Q. How did you get there? A. He pushed me.

"Q. Now what did he do then? A. He raised up my dress.

"Q. And then what else did he do? (Unanswered.)

"Q. Had you ever had anything like that happen to you before? * * * A. I had not.

"Q. What did he do?

"By the Court: Q. You say you were on the ground? A. I did.

"Q. Lying down? A. Yes, sir.

"Q. And what position did he take? A. He was on me.

"Q. By Mr. O'Hern: Q. He got on top of you? A. He did. * * *

"By the Court: Q. What did he do to you when he got on top of you? Did he do anything when he got on top of you? A. He did.

"Q. What did he do? Did he do anything with his private parts? A. He did.

"Q. What did he do? (Unanswered.)

"Q. What did he do with his private parts? A. He put it in mine.

"Q. That was along after dark some time? A. Yes, sir.

"Q. Now, let me ask you whether or not did you ask him where you wanted to go, or did you tell him? A. I wanted to go home to see my mother.

"Q. What did he say? A. He said, `No.'

"Q. How many times during the night did he do that? A. He did it three times [that is, had intercourse with her three times].

"Q. Will you tell the jury where you stayed? A. We stayed at the Ashland Park.

"Q. I mean, were you sitting up all the night, or what were you doing? A. We were lying down."

She said she asked him all night long to take her home, and he refused to do so. She further testified:

"Q. Did you struggle against this man? A. I did."

On cross examination she testified:

"Q. Did you scream during the time? A. I did not."

Mrs. Anna Giboney testified for the state, in substance, that Dorothy Giboney came home on Monday morning about 6 o'clock; that she seemed tired and worn-looking; that her hair was not in order, and was mussed up; that Dorothy told her she had stayed all night at the home of a little girl (Helen Morris); that witness told her she had inquired there, and that her statement was not true; that Dorothy finally admitted she had been with defendant; that she then undressed Dorothy, and found her shoulder bruised, and that she was bruised and bleeding; that her underwear was soiled; that she then called the doctor.

Helen Morris testified, in substance, that she left Dorothy Giboney and defendant at Ashland Park on Sunday evening.

The foregoing is a full statement of the case made by the state. Defendant demurred to foregoing evidence, and the demurrer was overruled.

Defendant's Evidence:

Charles Remley testified, in his own behalf, that he was 32 years old, had lived in Kansas City, Mo., about 6 years, and was employed by the Godley Feather Company, at Fifteenth and Wyandotte; that he worked there about 4 years; that he bought a place at 1924 Cypress, rented it, and lived with the people who rented it; that Dorothy Giboney lived across the street from him; that he first met her about April, 1926; that he saw her many times after that, and talked to her almost every day; that he had been out with her eight different times; that she was his sweetheart. Witness described the different places he had been with her. He testified that he met Dorothy on August 18, 1920, and they had ice cream together; that he met Dorothy and Helen Morris at Ashland Park on Sunday evening; that the Morris girl left them in the park; that he invited the Morris girl to go with them, and she declined; that he and Dorothy frequently talked about getting married; that he and Dorothy met at the park on Sunday evening by appointment; that on Sunday night, while walking in the park, they came over by the Ashland school, where they stayed all night; that when sundown came he proposed to go home, and she declined to go; that she was requested the second time to go home and refused; that he loved Dorothy, was willing to marry her at the time of trial, and would have taken care of her.

On cross-examination, defendant testified that on Sunday night the moon was shining; that Dorothy left him, and was gone about 20 or 30 minutes, that night; that she excused herself, but he did not know where she went; that there was no house in a block of where they stayed all night; that nobody was around there; that they had been to this place the evening before; that he wanted her to go home on Sunday night, and she would not go; that she was afraid to go home, for fear her mother would beat her; that Dorothy told him she was afraid to go home, as her mother would beat her; that he did not have intercourse with. Dorothy, nor did he mistreat or abuse her; that she never asked him to take her home; that she slept there all night in the park, with her head in his lap, and he did not bother her at any time.

The foregoing is a very full statement of all the facts relating to the alleged rape. At the conclusion of all the evidence, defendant again interposed a demurrer thereto, which was overruled. Such other matters, as may be deemed of importance, will be considered in the opinion.

Defendant, in due time, filed motions for a new trial and in arrest of judgment. Both motions were overruled, and the cause duly appealed to this court.

Horace Kimbrell, of Kansas City, for appellant.

Jesse W. Barrett, Atty. Gen., and R. W. Otto, Asst. Atty. Gen., for the State.

BAILEY, C. (after stating the facts as above).

I. Appellant has filed no brief in this court, but by his motions for a new trial and in arrest of judgment challenges the sufficiency of the information, and the evidence thereunder, to sustain a conviction. We will dispose of these questions in their inverse order.

The information herein is based upon section 3247, R. S. 1919, which reads as follows:

"Every person who shall be convicted of rape, either by carnally and unlawfully knowing any female child under the age of fifteen years, or by forcibly ravishing any woman of the age of fifteen years or upward, shall suffer death, or be punished by imprisonment in the penitentiary not lees than five years, in the discretion of the jury."

The evidence tends to show that defendant and Dorothy Giboney lived across the street from each other, and had more than a passing acquaintance. They met down in the city on August 21, 1921, and took ice cream together, went to Ashland Park that afternoon, and spent some time there. By previous arrangement between...