State v. Stackhouse

• Decision Date: 09 May 1912
• Parties: STATE v. STACKHOUSE.
• Court: Missouri Supreme Court

146 S.W. 1151

STATE v. STACKHOUSE.

Supreme Court of Missouri, Division No. 2.

May 9, 1912.

1. CRIMINAL LAW (§ 829)—INSTRUCTIONS— REFUSAL—PROPOSITIONS COVERED.

It is not error to refuse a proper instruction upon a question of law correctly submitted in another instruction.

2. RAPE (§ 54)—CORROBORATION OF PROSECUTRIX— NECESSITY.

Corroboration of prosecutrix in a rape trial is not essential to sustain a conviction.

3. RAPE (§§ 43, 48, 45)—EVIDENCE—ADMISSIBILITY.

In a trial for statutory rape, it was proper to admit evidence as to summoning of a physician for prosecutrix, her appearance and condition after the offense, as to what she said to accused when he came to her house, as to what he said to the neighbors the same day, and as to the competency of the physician to describe prosecutrix's condition.

4. RAPE (§ 52)—EVIDENCE—SUFFICIENCY.

Evidence held to sustain a conviction of statutory rape.

Appeal from St. Louis Circuit Court; J. W. McElhinney, Judge.

Jonah W. Stackhouse was convicted of statutory rape, and he appeals. Affirmed.

Z. J. Mitchell, for appellant. The Attorney General and John M. Dawson, Asst. Atty. Gen., for the State.

KENNISH, J.

At the September term, 1910, of the circuit court of St. Louis county appellant was convicted of the crime of statutory rape, and his punishment assessed at imprisonment in the penitentiary for a term of 25 years.

The evidence tended to prove these facts: At the time of the alleged offense, the defendant resided in a rooming house in the city of St. Louis, having but recently become a resident of this state. He was about 42 years of age and was engaged in the business of peddling soap and collecting soap wrappers in St. Louis county. The prosecutrix, Hazel Ludwig, then under 10 years of age, resided with her parents on Manchester road in said county. On the morning of June 30, 1910, the mother of prosecutrix and two other children went some distance from their home to pick blackberries, leaving Hazel at the home of a neighbor near by and in plain view of the Ludwig home. Shortly before 10 a. m., Hazel went to her home, and was in the house alone when defendant drove up in a single buggy, hitched his horse, and went into the house. He had previously on that day visited other homes in the neighborhood, offering to sell soap and soliciting soap wrappers, and was identified at the trial by a number of witnesses as the man who had been seen there, and who went into the Ludwig home on that day. The prosecutrix testified that the defendant came into the house, inquired of her as to where her mother was, and talked about selling soap. He told her to tell her mother to save the soap wrappers for him, and he would give her (prosecutrix) a dress shoes, and stockings. After having had her stand upon a chair and measuring her, he had her go into the bedroom, where he laid her on the bed and assaulted her. She could not describe clearly what the defendant did to her; but testified that he placed his privates between her legs, and also to other acts which tended to prove an assault with intent to rape. Her testimony alone did not prove penetration. A young lady at the home where Hazel had been left by her mother saw the man, whom she afterwards identified as the defendant, enter the Ludwig house. After he had remained inside some time, she became uneasy and sent her sister to the field to tell her brother to come home to investigate the matter. The brother went to Ludwig's, and just as he arrived the defendant came out, got into his buggy, and drove away. Hazel made no outcry, and when the young man came from the field and to the house she handed him a dipper to get a drink at the well, and received it from him again; but he noticed nothing unusual in her appearance. A few minutes thereafter her mother returned, and found Hazel lying on the couch crying. She was informed by Hazel of the conduct of the man who had visited the house in her absence. The mother testified as to the condition in which she found her daughter, and that she washed her and found her genital organs sore and swollen. A physician was immediately called. He made an examination and testified that he found the child in a very nervous condition, and that the genital organs disclosed "an abrasion of the inner lip of the vagina." Asked what he meant by an abrasion, he answered: "It means a place where the parts were denuded of skin—the skin rubbed off." He further testified that the abrasion was within the vagina, "and about a half an inch from the external part." but that "the hymen was not ruptured." The defendant, testifying in his own behalf, said he had never seen the prosecutrix until he saw her at the trial, and denied that he was guilty of the charge against him.

The court submitted the case to the jury upon instructions authorizing a conviction of the crime of rape, or of an assault with intent to rape, or acquittal on the ground of reasonable doubt, accordingly as they should find and believe from the facts and circumstances in evidence.

1. Appellant complains that the court erred in refusing to give instructions numbered 1, 2, and 3, asked by the defendant. Instruction numbered 1 was upon the subject of penetration, and No. 2 submitted the law as to the credibility of the witnesses. Both of these subjects were covered by correct instructions given by the court of its own motion; and it is well settled that it is not error to refuse even a proper instruction upon a question of law upon which the court has correctly instructed the jury in another instruction. State v. Driscoll, 235 Mo. 377, 138 S. W. 527; State v. Gow, 235 Mo. 308,...