State v. Scott

• Decision Date: 04 March 1903
• Citation: 72 S.W. 897,172 Mo. 536
• Parties: STATE v. SCOTT.
• Court: Missouri Supreme Court

72 S.W. 897

172 Mo. 536

STATE v. SCOTT.

Supreme Court of Missouri.

March 4, 1903.

RAPE — EVIDENCE — ADMISSIBILITY — ELECTION OF SPECIFIC OFFENSE—CONVICTION OF ATTEMPT.

1. In a prosecution for rape of a child 12 years of age, testimony by physicians that they made an examination of the prosecutrix about three months afterwards, and found the hymen destroyed and a laceration of the tensor vagina, was admissible.

2. Where an indictment for rape charged the commission of the offense on March 6th, and on the trial evidence was introduced tending to show previous attempts to commit the crime, the state was not required to elect, at the conclusion of the testimony, on which specific act it would rely.

3. In a prosecution for rape, it was competent to show that defendant had made previous attempts to commit the crime.

4. Under Rev. St. 1899, § 2361, providing that no person shall be convicted of an assault with intent to commit an offense, when it appears that the offense attempted was actually perpetrated in pursuance of such attempt, where the evidence, if credited, shows that the crime of rape has actually been committed, a conviction of assault with intent to commit rape cannot be sustained.

In Banc. Appeal from Circuit Court, Hickory County; Argus Cox, Judge.

Charles Scott was convicted of assault with intent to commit rape, and appeals. Reversed.

On the 26th day of August, 1901, the prosecuting attorney of Hickory county began

this prosecution by filing in the office of the clerk of the circuit court an information, verified by his official oath, charging the defendant with rape upon Laura Huffman, a female child under the age of 14 years. The offense was alleged to have been committed on March 6, 1901. A plea of not guilty was entered upon his arraignment, and defendant put upon trial and found guilty of an assault with intent to commit rape, and his punishment assessed at two years in the penitentiary. The defendant and the father of the prosecutrix lived on adjoining farms in Hickory county, about one-half mile apart. The prosecutrix was about 12 years old, and was living in her father's family. The two families were related, and up to the time the complaint was first filed against defendant in this case the most friendly relations existed between them. The evidence discloses that on various occasions, when defendant intended to be absent on business or on hunting expeditions, which would keep him out late at night, he was in the habit of requesting the prosecutrix and her sisters to stay with his wife, with the consent of her parents. It further appears that defendant would not return from his bunting trips until midnight, and sometimes nearly daylight the next morning. The evidence tends to show that defendant began to take improper liberties with the prosecutrix on one of the occasions when she slept at his house, coming into her room next morning before she had arisen. In the latter part of the winter or the early spring of 1901, defendant came to Mr. Huffman's, the father of the prosecutrix, and said he was going on a turkey hunt that night, and wanted prosecutrix to go and stay with his wife, and she went with him and stayed that night. She slept in one bed, and defendant's wife in another in the same room. Defendant returned about midnight, and went to bed with his wife. Prosecutrix testifies that later in the night she was awakened by defendant again taking improper liberties with her person, and finally attempting to have intercourse with her, but on that occasion failed. She testified she knew this was all wrong, but she was ashamed to tell his wife or her parents. On the 6th of March, 1901, he went on another turkey hunt, and prosecutrix and her sister Beulah went to stay with his wife, and went to bed and slept. She was again aroused from her sleep by defendant feeling her person, and found him in bed with her. She made no outcry, and on that occasion he accomplished his purpose. On another occasion Minnie Huffman, an older sister, went with prosecutrix to the home of defendant, because her mother and father were absent on a visit, and her brother had gone to a lodge meeting at Cross Timbers. Defendant had gone hunting that night, and came in late, and when she waked up she found defendant in the bed with her and her sister, the prosecutrix. When her brother came from the lodge, she went home with him. Two physicians testified to an examination of the prosecutrix, and found the hymen destroyed and her private parts lacerated. When defendant was arrested, he was placed, at his request, under guard till his examination before the justice. Bent Ihrig, a deputy constable, was the guard. At defendant's request Ihrig took defendant to his home on Monday. Ihrig testified that, soon after starting out of town on this trip, he said to defendant, "You have got yourself into a right smart little trouble, it seems like," to which defendant replied he did not think they could do anything with him; "they will just cause me a little trouble is about all; if I did, she was willing," or words to that effect. The guard expressed the opinion that the girl's age was what would hurt him, but defendant thought if she was willing it was all right. There was much controversy as to the exact date of the offense; the defendant introducing various witnesses to show it could not have occurred on the 6th of March, and the state a number to show that it occurred on the night of a party at a neighbor's (Mr. Smith), which several witnesses fixed quite definitely as March 6th. No effort was made to impeach the previous good character or general reputation of the prosecutrix for truth and veracity, to show any unfriendly feelings as the basis of the charge; but the defendant contradicted her evidence, and his wife testified that the act could not have occurred as detailed by prosecutrix without waking her, as she slept in the same room with the prosecutrix. An effort was made to impeach the witness Ihrig by showing his general reputation for truth and veracity was bad; but it appears to have been unsuccessful, as the weight of the evidence on that point tended to show it was good. A reversal is sought on various grounds which we now proceed to examine.

J. W. Montgomery, F. M. Wilson, and Rechow & Pufahl, for appellant. The Attorney General and Sam B. Jeffries, for the State.

GANTT, J. (after stating the facts).

1. The circuit court, over the objection of defendant, permitted the state to prove by two physicians, Drs. Curl and Harley, that they made an examination of the private parts of the prosecutrix about the 1st of July, 1901, and found the hymen destroyed and a laceration of the tensor vagina muscle, which had not yet entirely united. The objection is that this evidence was too remote, and counsel rely upon the decisions in State v. Houx, 109 Mo. 654, 19 S. W. 35, 32 Am. St. Rep. 686, and State v. Evans, 138 Mo. 125, 39 S. W. 462, 60 Am. St. Rep. 549, as sustaining their contention.

In State v. Houx, supra, the objectionable evidence in no way tended to prove the perpetration of the offense, but was in response to an inquiry as to the condition of the girl's health after the commission of the offense, and the witness was allowed to state that his daughter "lingered for three months, and would take spells"; and in commenting on this evidence Judge Macfarlane, who wrote the opinion, said: "Its only effect could have been to...