State v. Shaw

• Decision Date: 13 March 1920
• Citation: 220 S.W. 861
• Parties: STATE v. SHAW.
• Court: Missouri Supreme Court

220 S.W. 861

STATE v. SHAW.

Supreme Court of Missouri. Division No. 2.

March 13, 1920.

Appeal from Circuit Court, Caldwell County; Arch B. Davis, Judge.

G. H. Shaw was convicted of felonious assault with intent to ravish, committed upon a female under the age of consent, and he appeals. Affirmed.

The appellant, George H. Shaw, was convicted in the circuit court of Caldwell county, Mo., upon a charge of felonious assault with intent to ravish, committed upon a female under the age of consent. His punishment was assessed by a jury at confinement in the county jail for a term of 12 months. By appropriate steps he has appealed from the judgment rendered upon that verdict to this court. The facts are substantially as follows:

The prosecuting witness, Ella Melone, testified, in substance, that at the time of the commission of the alleged offense she was in her fourteenth year; that on the evening of the 8th day of April, 1919, she went to defendant's house at the request of his wife, to take care of defendant's baby while Mrs. Shaw and Mrs. Shaw's sister went to a picture show; that she arrived at the house about 8:30 or 9 o'clock; that Mrs. Shaw and her sister left shortly thereafter, but before leaving Mrs. Shaw called the defendant over the telephone and had some conversation with him about going to the picture show; that the defendant came, at about the hour of 9:30 p. m.; that she recognized him through a glass in the door, and admitted him, and he then asked if his wife was at home, and was told she had gone to the show, and witness then asked defendant why he was not there, and he said the show was out; that defendant then went through the house and out of the back door, but returned in 5 or 10 minutes, and walked up to the back of the chair in which the witness was sitting, put his hand on the chair, and, as the witness expresses it, "wanted me to let him love me, and I wouldn't do it"; that she then left the chair to put a record on the grafonola, which she was playing, and after doing so stood by a window near by; that defendant approached her, and she then smelled liquor on his breath; that defendant renewed his solicitations, and asked the witness to sit on the cot with him, which she declined to do; that after a few moments he took her by the wrist, but said that he would not hurt her, and if she told' him to do so would turn her loose, which, upon her request, he did, but persisted in his solicitations; that he then sat down on the couch, and the witness went over to the couch to pick up her coat, and started to put it on; that, when she had the coat partially on, defendant took hold of her wrists and renewed his indecent proposals, and finally said that he would compel her to acquiesce to his demands; that she was scared, and began crying, and that the baby, which was upstairs, also began crying; that defendant again threatened to use force, and pulled the witness down on the cot beside him, holding her with one hand by the wrist, and with his other arm around her waist; that she attempted to free herself, but was unable to do so, and appellant then put his hand under her dress and pulled her dress up to about her knees, and asked' her permission to take further liberties, which she declined to give, whereupon defendant renewed his threats of using force, and rose as if to put his threats into execution, and started to throw the witness down on the cot; that she screamed, and twice told defendant to "wait a minute"; that at this juncture he released his hold of her, and she ran out of the room to the front porch; that defendant went into the dining room, and asked the witness to come back into the house, which she declined to do, and instead went over to the house of Dr. Waterman, a neighbor who lived near by, and asked him to call Mrs. Shaw to come home, which he did; that she was invited into the house, and after a few minutes her mother came, but before her mother's arrival she had told Dr. Waterman and his wife what had occurred at the Shaw home. This is the substance of the testimony of this witness in chief.

On cross-examination, the witness testified that defendant did not hurt her; that she had been around the restaurant which defendant conducted in the town of Breckenridge, where the parties then lived, "quite a bit"; that on the following morning, between 7 and 8 o'clock, she returned to defendant's house to get her coat, and stayed until about 9 or 10 o'clock; that he was in bed when she went back there the next morning, and was asleep when she got there; that she went upstairs ; that Mrs. Shaw and her sister were both there at the time, and were upstairs with the witness during her stay; that she worked at the local hotel, and that she went back there to work the next day after the occurrences which she had recited; that she did not speak to defendant on the morning that she returned to his house, and that she did not swear out the warrant which was issued against appellant. She also testified that defendant is afflicted with a stiff knee.

Dr. J. A. Waterman was called as a witness by the state, and testified that he lived about 100 feet from defendant's residence, in the adjoining house; that he was at home on the night of April 8, 1919; that Ella Melone came to his front door about 10 o'clock that night, and that he had heard her crying as she came around the porch, before she rang the bell; that when he opened the door she was crying violently; that he took her into the house, and that she then told him what had occurred; and that she remained until about 10:30 p. m., by which time her mother had arrived.

Mrs. Waterman, the wife of the last-named witness, corroborated the testimony of her husband in all essential respects.

Mrs. Viola Grunn, testifying in behalf of the state, stated that she lived next door to Dr. Waterman, and that on the evening of April 8, 1919, about 10:30 o'clock, she heard some one screaming and crying; that she went to the door, and saw Ella Melone standing on Dr. Waterman's porch; that her house is a short distance from Dr. Waterman's porch.

Mrs. Melone, the mother of the prosecuting witness, testified that her daughter was 13 years of age on the 16th day of the preceding November; that on the evening of the 8th day of April, 1919, she was called to Dr. Waterman's house, and found her daughter there in company with Dr. Waterman and his wife, and that her daughter then made complaint to her of the treatment she had received at the hands of the defendant.

A. A. Cornelius, a witness for the state, testified that he was in Breckenridge in April, 1919, and bought defendant's restaurant from him during that month; that he had heard of the occurrences above detailed before he made the purchase; that on the second day after the night in question, and after the witness had bought the restaurant, he saw the defendant leave on the train; that defendant told him he had been in trouble; and that defendant's wife and baby were with him when he left.

J. C. Arnote testified, in behalf of the state, that he was sheriff of Caldwell county; that he arrested the defendant in Chicago on the 4th day of May, 1919, having learned of his presence in that city on the preceding day; that defendant then said he had been in Chicago 3 or 4 weeks, and that he brought the defendant back to Caldwell county and placed him in jail.

This is substantially all of the testimony in behalf of the state. At this juncture the defendant interposed a demurrer to the evidence. The state was then permitted to recall the prosecuting witness, who testified that the occurrences detailed by her took place in the city of Breckenridge, Caldwell county, Mo., and thereupon the court overruled the defendant's demurrer.

Testifying in his own behalf, the defendant stated that he went to Chicago in search of work; that he was there about 3 weeks; that upon being arrested he waived extradition and came home in company with the sheriff; that he had not known of the existence of any charge against him until his arrest in Chicago; that he left Breckenridge, Mo., on the 10th day of April, 1919; that he was in Breckenridge on the evening of the 8th day of April, and went home about 9:30 o'clock on that evening, and found the prosecuting witness there; that he had not known before that time that she was at his home; that he went to the kitchen and took a drink of whisky; that after about 5 minutes he returned to the living room, where Ella Melone was.; that he did not touch her, but went over and sat down on a cot, because of a stiff knee; that the prosecutrix played five or six pieces on the grafonola; that he had known her ever since he had been in Breckenridge, which was about 2 years; that she was frequently about his restaurant; and that he never mistreated her in any way.

On cross-examination, the witness stated that he did not remember anything that he said to the prosecuting witness, but that they talked for a considerable time; that she came and sat down on the cot beside him; that she then got up and said she was going home, and was then crying, and said she was afraid of him, because he had been drinking; that he had had other drinks before he came home, and that the...