State v. Schlichter
| Decision Date | 23 February 1915 |
| Citation | 173 S.W. 1072,263 Mo. 561 |
| Parties | THE STATE v. ANTHONY SCHLICHTER, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Kent K. Koerner Judge.
Reversed and remanded.
Ferris & Rosskopf for appellant.
(1) The evidence shows that the prosecutrix was not of such unsound mind as to be the subject of a charge of rape upon an insane female. It is not established that defendant knew of and took advantage of such mental infirmity of prosecutrix. Morrow v. State, 79 S.E. 63; Thompson v. State, 33 Tex. Crim. 472; Lee v. State, 43 Tex. Crim. 285; State v. Patrick, 107 Mo. 147; State v Lawhorn, 250 Mo. 307; State v. Warren, 232 Mo 200; State v. Cunningham, 100 Mo. 393; 2 Bishop on Criminal Law (6 Ed.), sec. 1121; 1 Wigmore on Evidence, sec. 496. (2) Mere insanity, even if known, does not make the act rape. The insanity must totally destroy the capacity to consent. State v. Warren, 232 Mo. 185; State v. Cunningham, 100 Mo. 382; 1 Wharton, Crim. Law (11 Ed. 1912), sec. 702, p. 881; 2 Bishop on Criminal Law (8 Ed.), sec. 1121. (3) The trial court erred in giving instruction No. 4. (a) Said instruction should have required the State to show and prove that defendant at the time, knew of such mental deficiency and inability to consent. State v. Warren, 232 Mo. 185. (b) And it is not sufficient in this respect that other instructions may have been given, requiring the State to prove that defendant knew of such mental deficiency. An erroneous instruction is not cured by a conflicting instruction, stating the law correctly. State v. Fellers, 140 Mo.App. 724; State v. Dearing, 65 Mo. 530; State v. Adams, 76 Mo. 355; State v. Cable, 117 Mo. 380; State v. Tatlow, 136 Mo. 678; State v. Herrell, 97 Mo. 105; Kelly's Criminal Law (3 Ed.), sec. 393. (4) If it be true, as assumed by the State, that the prosecuting witness was insane at the time of the offense charged, then as to that act she was not a competent witness. Lee v. State, 43 Tex. Crim. 286. (5) The trial court erred in excluding the testimony of the jurors at the previous trial. (a) Petit jurors may, in a subsequent action, testify to facts occurring at the former trial, if relevant, for example, as to statements of witnesses or what claims were allowed by the jury. Jones' Commentaries on Evidence (2 Ed.), sec. 766, p. 961; Woolfolk v. State, 85 Ga. 98; Piatt v. St. Clair, 6 Ohio 234; Taylor v. Larkin, 12 Mo. 103; State v. Duffy, 57 Conn. 525. (b) When the mental condition of an individual at a particular time is in issue, conduct, acts and declarations, after, as well as before the time in question, are admissible, if sufficiently near in point of time, and if they appear to have any tendency to show what that mental condition was at the time in issue. People v. Brent, 106 P. 110; Parrish v. State, 139 Ala. 16; People v. Koerner, 191 N.Y. 48. (c) A non-professional witness, who has detailed what he had seen and observed in the conduct of a person accused of crime, may give his opinion as to whether the accused had sufficient mind to discriminate between right and wrong in reference to his act. Smith v. State, 58 Ark. 139; Pflueger v. State, 46 Neb. 493; U. S. v. Guiteau, 1 Mackey, 546; Johnson v. Culver, 116 Ind. 278; Wilkinson v. Pearson, 23 Pa. 117; In re Wax, 106 Cal. 343; Bishoff v. Commonwealth, 123 Ky. 343. (4) A lay witness may give expression to an opinion that a person is sane without giving the facts upon which he bases his opinion, for in that case, the subject of the testimony would not give manifestations of certain eccentricities which usually mark the conduct of a mind diseased. State v. Soper, 148 Mo. 235; State v. Halloway, 156 Mo. 222; lamb v. Lippincott, 115 Mich. 611; 1 Wharton's Criminal Evidence (10 Ed.), p. 844, sec. 417; 39 L.R.A. 305. (e) It was competent for defendant to prove that prosecutrix conducted herself in such a way as indicated she was feigning insanity at the trial of this case. Basham v. Commonwealth, 87 Ky. 440. (f) Where the defense is insanity, it is proper to permit the State, in rebuttal, to introduce in evidence the testimony of defendant on his former trials for the same offense. State v. Speyer, 207 Mo. 547. (g) A witness may be impeached by proving facts contrary to his testimony, by proving previous contradictory statements, or by showing conduct or acts of the witness inconsistent with his testimony or tending in some manner to discredit the witness or his testimony. 16 Current Law, 2683; Railroad v. Ransom, 5 Ga.App. 740; Eswein v. Hodgkinson, 108 N.Y.S. 531; Wefel v. Stillman, 44 So. 203; People v. Fong Chung, 5 Cal.App. 587.
John T. Barker, Attorney-General, and Lee B. Ewing, Assistant Attorney-General, for the State.
(1) (a) The court properly overruled appellant's demurrer to the evidence at the close of the State's case and also at the close of the whole case. The evidence was ample to sustain the finding of the jury. State v. Williams, 149 Mo. 496; Adams v. State, 114 P. 347; State v. Enright, 90 Iowa 520; Gore v. State, 119 Ga. 418; Sandeufer v. Commonwealth, 143 Ky. 655; State v. Smith, 203 Mo. 695. (b) If there was any testimony tending to show that the prosecutrix was of unsound mind to such a degree as to render her incapable of consenting to sexual intercourse, it was the province of the jury to pass upon the question. State v. Sharp, 233 Mo. 269; State v. Tatman, 228 Mo. 470; State v. Myers, 221 Mo. 469; State v. Huff, 164 Mo. 405. (c) In determining the question, the jury had the right to take into consideration the age, appearance and demeanor of the prosecutrix upon the witness stand, as well as all the other facts and circumstances in the case. Wigmore on Evidence, secs. 1154-1160; 33 Cyc. 1472; State v. Philpot, 97 Iowa 365; State v. Jones, 106 Ga. 365; State v. Enright, 90 Iowa 520; State v. Simes, 85 P. 914; State v. Hubbard, 147 S.W. 260; Wigmore on Evidence, sec. 501. (2) The trial court did not err in giving instruction number four. This instruction properly declared the law and did not authorize the jury to find the verdict without their finding that appellant knew that the prosecutrix was of unsound mind. All instructions must be read together and when this instruction was read in connection with the other instructions in the case it was not misleading. State v. Wiseman, 238 Mo. 558; State v. Montgomery, 230 Mo. 671; State v. Mathews, 98 Mo. 125; State v. McKenzie, 177 Mo. 715; State v. Hall, 228 Mo. 469. (3) The court did not err in excluding the testimony of the jurors in the Fisler trial involving the same issues as in the present case. If there was error in excluding these witnesses it was not prejudicial.
Upon an information charging him with rape, defendant was tried in the circuit court of the city of St. Louis, found guilty, and his punishment assessed at fifteen years in the penitentiary. Defendant duly perfected an appeal to this court.
Prosecutrix was eighteen years of age at the time of the alleged offense and the information charged the defendant with "forcibly ravishing" the prosecutrix. During the progress of the trial, the defendant made a motion that the State be required to elect whether the case should be tried upon the theory that the offense was committed by force or on the theory that the prosecutrix did not have the mental capacity to consent. At the close of all the evidence, the State elected to submit the case to the jury on the theory that prosecutrix was incapable mentally of giving consent, and the case was, by the court, submitted to the jury on that theory.
The record embracing the testimony is very large. It will only be necessary to state such facts as shall have a bearing on the theory of the case upon which it was submitted to the jury.
The evidence on the part of the State tended to establish the following facts: Prosecutrix was eighteen years of age at the time of the alleged offense. When she was a baby and during her "teething time" she began to have spasms and continued to have spasms at intervals until she was about seven years of age and was unable to walk until she was five years old. From eight until twelve years of age she suffered with St. Vitus's dance, resulting in a nervous breakdown at the age of twelve and she has continued to be very nervous to the present time. Her entire schooling consisted of about one month and on account of her nervous condition she was taken out of school. She knows the figures on the face of a clock and can tell which of the numbers the hands of the clock are on but cannot tell the time of day by looking at a clock. She knows the value of different coins but cannot add several coins together and tell what the total is. She can go to places where she has been but if she gets a block or so out of her accustomed route she becomes lost and confused. She never received gentlemen callers, but always played with children much younger than herself. Her father testified that she had always been bright "with the exception of her nerves;" that if any one would talk to her she would become excited and would stand dumb and could not answer; that going along the street, over a route to which she was accustomed, she would go along like any other lady. Her mother testified that she was not bright; that she had to tell her how to do everything and that the left side of the girl's body was not fully developed but was smaller than the right side. One of the neighbor women testified that prosecutrix was delicate and weak mentally that she talked like a child eight years old but always seemed bright in company. Another neighbor woman testified that, in her opinion, prosecutrix was unsound mentally and seemed stupid in conversation and could...
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