State v. Schuster

• Decision Date: 10 October 1955
• Docket Number: No. 1,No. 44434,44434,1
• Citation: 282 S.W.2d 553
• Parties: STATE of Missouri, Respondent, v. Richard Adolph SCHUSTER, Appellant
• Court: Missouri Supreme Court

Page 553

282 S.W.2d 553

STATE of Missouri, Respondent, v. Richard Adolph SCHUSTER, Appellant.

No. 44434.

Supreme Court of Missouri, Division No. 1.

Oct. 10, 1955.

W. H. S. O'Brien, Festus, for appellant (defendant).

John M. Dalton, Atty. Gen., Paul McGhee, Asst. Atty. Gen., for respondent.

VAN OSDOL, Commissioner.

Defendant was convicted of the crime of forcible rape. Section 559.260, RSMo 1949, V.A.M.S. His punishment was assessed by a jury at two years in the penitentiary; and he has appealed from the judgment entered.

Herein defendant-appellant contends the trial court erred in overruling defendant's motion for a judgment of acquittal; in giving State's Instruction No. 3; and in failing to properly rule on defendant's objection to a statement made by the prosecuting attorney in his argument to the jury. Defendant-appellant also asserts the prosecuting attorney, when prosecutrix was testifying, assisted her in identifying defendant and that this conduct was prejudicial in that the ability of the prosecutrix to identify defendant as one of her assailants was seriously questioned and, because of the prosecuting attorney's conduct, even now remains in doubt.

The State introduced evidence tending to prove that prosecutrix, sixteen years old, married but estranged from her husband was sitting with one Kirkland in an automobile parked on a street in St. Louis at about eleven o'clock in the evening of October 20, 1953. Another automobile came up behind the Kirkland car and stopped. Five men got out of the other car and, coming up beside the Kirkland car, demanded that prosecutrix and Kirkland get out 'and do as we say and you won't get hurt.' Defendant said to prosecutrix, 'Come on and get out of the car or I will cut your damn throat.' One of the men, Ellington, drew a pistol, and another (defendant) had a knife. They overpowered Kirkland; forced prosecutrix into the other automobile; deflated a rear tire of the Kirkland car; and then drove away taking prosecutrix with them. They made her crouch or sit or lie down on the floor board between the front and rear seats and partially concealed her with a 'television.' Ellington, sitting on the left in the rear seat, 'was sitting over' her. Defendant set on the right of the rear seat, and the other three men were in front. The car was driven to a service station for gasoline, but prosecutrix testified she made no outcry there, because she was in fear--'I couldn't raise up--and he (Ellington) had this gun.' The car was then driven out Gravois to Highway No. 21 and on across the Meramec River, thence down a rocky road to a point at or near a 'club house' or 'cabin with stilts' in Jefferson County. There the six got out of the car and entered the cabin through a window, Ellington the while holding prosecutrix by the arm and demanding that she 'keep walking.' Defendant was behind her. Ellington took prosecutrix into a bedroom, removed her clothes, pushed her down on a bed and had sexual intercourse with her against her will. Ellington then said, 'Don't you get up, you wait a minute. I will be right back.' Ellington went into another room and defendant then came in, pushed prosecutrix down and had intercourse with her without her consent. The entire party of six were in the cabin until nearly dawn. Returning to St. Louis, prosecutrix was put out of the car on a street about seven blocks from her home. She caught a cab and went home arriving about five o'clock in the morning of October 21st. 'Not too long, not over five minutes' later she told her mother and brothers 'all about it,' and also talked to a policeman about 'what all happened.'

When defendant's counsel was cross-examining prosecutrix he confronted her with her testimony at the preliminary hearing to the effect that one Speraneo, one of the five who abducted prosecutrix, had committed the second assault upon her. And it seems that at one time during her testimony at the preliminary hearing prosecutrix said that she had made no objection; that she was not sure who was her second assailant--'I couldn't exactly see his face in the pitch dark--he (her second assailant) is slimmer than this first guy'; and that she had formerly said that defendant was drunk and she was not sure he consummated the sexual act. However, she explained she later identified defendant as the one who committed the second assault because she knew her second assailant was drunk, as was defendant, and had missing teeth, as has defendant.

Defendant-appellant herein urges there was no substantial evidence that the alleged act of intercourse was against the will of prosecutrix. And it is said prosecutrix' entire story as related at the trial and as related at the preliminary hearing 'all creates an irreconcilable conflict resulting in nothing but confusion.'

In the case of State v. Burton, 355 Mo. 467, 196 S.W.2d 621, cited by defendant-appellant, the testimony of the prosecutrix at the trial disclosed conduct on her part, before and after the time of the alleged assaults, inconsistent with that of one who was about to be or had been forcibly ravished. Prosecutrix in that case had three opportunities to safely leave the automobile in which she was assertedly assaulted, one opportunity being after one of her alleged assailants told her that the five were going to have sexual intercourse with her. Upon her return home it was some fourteen hours before she made complaint to her mother.

In our case, it was reasonable to infer that prosecutrix did not have an opportunity to escape her armed abductors; and that outcries and physical resistance to the utmost were inhibited and her submission brought about through fear. "A consent induced by fear of personal violence is no consent; and, though a man lay no hands on a woman, yet if by an array of physical force he so overpowers her mind that she dares not resist, he is guilty of rape by having the unlawful intercourse.' Bishop, Criminal Law, 7th Ed., Sec. 1125.' State v. Moore, Mo.Sup., 143 S.W.2d 288, 289. See also State v. Catron, 317 Mo. 894, 296 S.W. 141; State v. Barbour, 234 Mo. 526, 137 S.W. 874; State v. Cunningham, 100 Mo. 382, 12 S.W. 376.

There was no inconsistent statements of the prosecutrix-witness during the trial which would destroy the probative effect of her testimony; nor was her testimony incredible or inherently improbable so as to call for a showing of corroborative circumstances. However, in this connection, the evidence...