State v. Riseling

• Decision Date: 31 January 1905
• Citation: 186 Mo. 521,85 S.W. 372
• Parties: STATE v. RISELING.
• Court: Missouri Supreme Court

85 S.W. 372

186 Mo. 521

STATE v. RISELING.

Supreme Court of Missouri, Division No. 2.

January 31, 1905.

ASSAULT WITH INTENT TO RAPE — INFORMATION — SUFFICIENCY — ELEMENTS OF OFFENSE.

1. An information charging that defendant in and upon N. F., a female child under the age of 14 years, to wit, of the age of 12 years, unlawfully and feloniously did make an assault, with intent her, the said N. F., then and there feloniously to unlawfully and carnally know and abuse, against the peace and dignity of the state, was sufficient to sustain a prosecution for assault with intent to rape.

2. On a prosecution for an assault with intent to rape a female under 14 years of age, an instruction defining rape as carnally and unlawfully knowing a female child under 14 years was not erroneous; it conforming to Rev. St. 1899, § 1837, defining rape.

3. On a prosecution for assault with intent to commit rape on a female under 14 years of age, an intent evidenced by persuasion or inducement is not sufficient, but some physical force is requisite.

4. On a prosecution for assault with intent to rape a female under 14 years of age, evidence of prosecuting witness, if believed, held to show an assault.

5. On a prosecution for assault with intent to rape a female under 14 years of age, the intent may be found from the nature and character of the assault.

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

Edward C. Riseling was convicted of an assault with intent to rape, and he appeals. Reversed.

At the April term, 1904, of the Jasper county circuit court, the prosecuting attorney of said court filed in said circuit court the following information, duly verified, charging defendant with an assault with intent to carnally know and abuse, which is as follows: "Comes now Andrew H. Redding, the prosecuting attorney within and for the county of Jasper and state of Missouri, and, as such prosecuting attorney, informs the court that Edward C. Riseling on the 16th day of February, 1904, at the county of Jasper and state of Missouri, in and upon one Neta Fisher, a female child under the age of fourteen years, to wit, of the age of twelve years, unlawfully and feloniously did make an assault, with intent her, the said Neta Fisher, then and there feloniously to unlawfully and carnally know and abuse, against the peace and dignity of the state."

The testimony on the part of the state, as detailed by the prosecuting witness, is substantially as follows: The defendant is a married man. His family consisted of his wife and a little daughter of the age of about 4 years. Neta Fisher, the prosecutrix, was of about the age of 12 years at the time of the incident narrated on the record. She lived with her father, mother, and little sister. The Fisher and Riseling families lived near each other, and on adjoining lots. The relations of the families were cordial. The familiarity of the families was probably due in a large measure to the love of the children for each other, as the evidence shows Neta Fisher was almost constantly at the home of the defendant, and, on the night of the unfortunate occurrences which are revealed here, the record shows that Neta Fisher was performing the role of "little mother" to defendant's little child. On the evening of February 16, 1904, the defendant was somewhat late in coming home — so late that his family had eaten supper, and his wife had gone to the Fisher's, and she and they, together with another neighbor, were playing cards. Neta Fisher, as was her custom, was at the Riseling home. Her sister Zella was also there, as was another young girl and the servant of the defendant. When defendant reached home, he ascertained that his wife had eaten supper and was at the home of the Fisher family. He went there for a moment, and then returned to his own home. His little visitors, who were awake, began to talk about going home. He suggested to his servant girl that she entertain them for awhile with the graphophone. But the servant did not know how to manipulate it, and the defendant played a few pieces, eating his supper between times. Neta Fisher and defendant's little daughter had both fallen asleep, and were lying upon a davenport which was in the dining room. Other occurrences are best told in the language of Neta Fisher, who testified as follows: "Q. Just tell the jury what you did and what occurred after you went? A. Well, when I went over there we sat around the stove awhile, and Jennie Hudson told us stories, and the baby was sleepy, and she played around awhile; and she wanted Jennie to undress her, and lay her on the davenport, and she wanted me to be her mother, and play like I put her to sleep; and I said, `All right,' and laid down by her, and she went to sleep, and I went to sleep with her; and the next I knew I was out on Mr. Riseling's back porch, and I was not wide awake. I just know the air struck me, and as I got further on out I was awake, and I looked up to see who it was. I saw Mr. Riseling, and I wasn't scared, because I didn't think he would hurt me; and when we got on out further I saw he was going to take me to the closet, and when we got there I put my feet up and pushed myself back, but he pushed me on in, and he sat down — Before that, on the way out there, I told him, when I first got wide awake, I didn't want to go out there; I wanted to go back in the house; but he kept saying, `Hush,' and I said, `Let me go.' I didn't scream very loud; I just said it; and, when I saw he was going to take me clear in the closet and shut the door, I began to holler loud, and he kept saying, `Hush,' `Hush;' and then he sat down and took me upon his lap and told me to kiss him, and I told him I wouldn't do it. I had on a dress that opened in the front, and he tried to get his hand in the front of my dress, and he couldn't; and then he tried to get his hand under my dress, and put it down as far as my knee, and I put my hand down like that, and he couldn't get it up any further; and then when he put his hand on my knee I had a chance to use this arm. He had his other arm around me, holding my arm, and I got up and opened the door, and he still had hold of my arm, and then I went on to the house, and he still had hold of me, and went into the kitchen and wiped out my eyes, and he went in the other room, and the rest of the folks came in the other room."

The testimony in behalf of the defendant is as follows: "Neta Fisher, who had gone to sleep on the lounge in the dining room, turned and rolled over, and fell to the floor. He got up and walked over, and raised her up, and asked what was the matter, and told her to wake up. She said, `Oh, I am sick. I have got to go out.' He, as he stated, thought she had been in a warm room, sleeping, and her stomach was out of order, and he led her to the door. As she stepped on the porch, she kind of staggered. He said, `Neta, wake up. Are you asleep?' She said nothing, but started off toward the closet. He followed her at some distance, and came to a little coal shed on the south side of the path, about 18 or 20 feet west of the closet. She kind of reeled, and defendant caught her, and she said: `Let me go. I am all right. Let me go.' He turned her loose, and she turned and took a few steps back toward the house, and kind of stumbled, like. Defendant walked up a couple of steps quickly, and took hold of her elbow, and said, `Neta, what's the matter with you, anyway?' wondering if the girl was in her sleep, but, thinking something was wrong, said, `Neta, what's the matter?' and she said: `I am all right now. Let me go. Let me go. I am all right.' She then walked back to the kitchen door, about 10 feet ahead of defendant. In the meantime Zella Fisher went into the dining room, and, finding Neta gone, ran into the Fisher house, and, as stated by some of the witnesses, said, `Neta was gone, and Mr. Riseling was gone, and that he had taken her and killed her.' The Fishers came out, and began to call Neta loudly. As Neta and defendant entered the dining room door, Mrs. Fisher came into the front door, very much excited, and exclaimed, `Ed Riseling, where have you had my daughter?' and, `What have you done to her?' Defendant stated to her what had happened, whereupon she said, `Neta Fisher, tell your mother what he has done.' Whereupon defendant said, `Neta, tell your mother what I have done, or if I hurt you;' and Neta said, `Mamma, he hasn't hurt me, or touched me, or done anything to me.' She then said, `Neta, tell your mother, if God was your judge — tell your mother the truth.' Defendant said, `Tell your mother the truth, or if I hurt you;' and she said, ...