State v. Sykes

• Decision Date: 21 November 1905
• Parties: STATE v. SYKES.
• Court: Missouri Supreme Court

89 S.W. 851

191 Mo. 62

STATE v. SYKES.

Supreme Court of Missouri, Division No. 2.

November 21, 1905.

1. JURY — COMPETENCY OF JURORS — OPINION.

A juror who is able, notwithstanding his opinion, founded on rumor or newspaper reports, to give accused a fair trial on the evidence, is competent, within Rev. St. 1899, § 2616, providing that if it appears that a juror's opinion is founded only on rumor and newspaper reports, and not such as to prejudice his mind, he may be sworn as a juror.

2. CRIMINAL LAW — EVIDENCE — CONSPIRACY — SUFFICIENCY.

A conspiracy to commit a crime may be shown by facts from which a conspiracy may be inferred.

3. SAME.

On the issue of the existence of a conspiracy between defendant and a third person to commit rape, evidence examined, and held sufficient to justify the inference that there was a conspiracy.

4. SAME — EVIDENCE OF CONSPIRACY.

It is not necessary that a third person should be joined with accused in the information in order to permit the state to prove a conspiracy between accused and the third person to commit the crime charged.

5. SAME — EVIDENCE — OBJECTIONS — TIME TO MAKE.

A defendant, on trial for crime, cannot, after a witness has answered a question, interpose an objection to the question.

6. SAME — MOTION TO STRIKE.

Where an answer is not responsive to a question, the accused must either move the court to exclude it or ask the court to instruct the jury to disregard it.

7. SAME — EVIDENCE OF FLIGHT OF CONSPIRATOR — ADMISSIBILITY.

Evidence of the flight of a conspirator, on a trial of a co-conspirator, is irrelevant and immaterial.

8. SAME — HARMLESS ERROR.

The error in admitting evidence of the flight of a conspirator on the trial of a co-conspirator is not prejudicial.

9. RAPE — PRINCIPAL IN THE FIRST DEGREE.

Rev. St. 1889, § 2364, provides that every person who shall be a principal in the second degree in the commission of a felony may be convicted and punished as a principal in the first degree. On a trial for rape, the evidence showed that there were two distinct rapes on the prosecutrix — one by a third person, aided by defendant, and the other by defendant. Held, that defendant was properly tried and convicted as principal in the first degree.

10. CRIMINAL LAW — EVIDENCE — OTHER OFFENSES.

Where accused and a third person, pursuant to a common purpose, ravished a female, the fact that the third person first assaulted her while accused looked on, and that he immediately afterwards did the same, did not make two distinct offenses, and evidence of the whole transaction was admissible on the trial of accused.

11. RAPE — PRINCIPALS AND ACCESSORIES.

Where, on a trial for rape, the evidence showed that defendant stood by and witnessed a third person ravish the prosecutrix, encouraging the third person in the commission of the crime by his presence, by refraining from attempting to prevent its commission, and that defendant immediately thereafter ravished her, defendant was an accessory before the fact to the crime committed by the third person, though neither the prosecutrix nor defendant knew him.

12. CRIMINAL LAW — INSTRUCTIONS — CURING ERROR.

The error in an instruction, on a trial for rape, that the prosecutrix has no interest in the case other than that of a witness, and her testimony must be weighed like that of any other witness, is cured by an instruction that, though she is a competent witness, the fact that she was implicated in the affair may be taken into consideration in determining the weight of her testimony.

13. SAME — EVIDENCE — SUFFICIENCY.

Evidence on a trial for rape examined, and held to show that a third person and defendant ravished the prosecutrix pursuant to a conspiracy to commit the offense, authorizing a conviction of defendant.

Appeal from Circuit Court, Lewis County; E. R. McKee, Judge.

Bruce Sykes was convicted of rape, and he appeals. Affirmed.

Charles D. Stewart, B. L. Anderson, Hilbert & Hilbert, W. A. Mussetter, Dowell & Simpson, and Smoot, Boyd & Smoot, for appellant. The Attorney General, N. T. Gentry, R. B. Noel, Pros. Atty., and O. C. Clay, for the State.

BURGESS, J.

On the 21st day of June, 1904, the defendant was convicted of rape upon the person of one Alice J. Wood, and his punishment fixed at 12 years' imprisonment in the state penitentiary, under an information theretofore filed by the prosecuting attorney of Lewis county with the clerk of the circuit court of said county, charging that defendant, in said county, on the 28th day of June, 1903, in and upon one Alice J. Wood unlawfully, violently, and feloniously did make an assault, and her, the said Alice J. Wood, then and there, unlawfully, forcibly, and against her will, feloniously did ravish and carnally know, against the peace and dignity of the state. After unavailing motions for a new trial and in arrest of judgment, defendant appeals.

The facts are substantially as follows: On Saturday evening, June 27, 1903, there was a festival at Salem Schoolhouse, in Lewis county. The night was dark, but light enough to see a short distance. Ben Byers attended said festival in an old buggy with a dark red running gear, drawn by a sorrel horse. He took two small children with him, a nephew and niece, to the festival early that evening, returning with them to his mother's house, and then, about 8 o'clock, went back to the festival. What time he afterwards returned home is not shown by the evidence, but his mother did not call him till dinner time on Sunday, when he came down stairs from his bedroom, accompanied by the defendant. The schoolhouse alluded to was distant some two miles from the Byers home. The defendant attended said festival in a two-horse buggy. About 11 o'clock Ben Byers made an engagement to take Miss Anna Wilson home from the festival, but afterwards asked to be excused, for the reason, as he stated, that defendant was going home with him to stay all night, and, besides, Miss Wilson had decided to go to another place, which lay in another direction from the schoolhouse. The prosecuting witness was at said festival, and met the defendant there. She had only met him once before, in January, 1903, at a ball in Lewiston. Miss Wood attended the festival in company with her cousin, John Browning, arriving at the schoolhouse about 9 o'clock. Defendant, who was then 19 years old, asked the prosecutrix for her company home at about 11 o'clock. She declined, saying that she had come there with her cousin. Defendant replied: "He don't care. We will see him." He then took her out to supper, and on the way met her cousin. She asked her cousin if he cared whether defendant took her home, and he replied that he did not. Defendant and the prosecutrix had supper, and then started together toward her home, riding in a one-horse buggy. On the way defendant made attempts to put his arm around her and kiss her, she objecting all the time. Defendant insisted that she did not care if he caressed her, and she insisted that she did. As they neared Mr. Fishback's, defendant discontinued his efforts, and did not again molest her till they had passed that residence and were near what was called the "Troublesome Bridge," about four miles from the schoolhouse, in Lewis county. Defendant looked back two or three times, and then pulled up her dress and felt of her leg. She objected, jumped out of the buggy, and commenced running away from him. After going a little distance she looked back and saw defendant and another man following her. They overtook her; the defendant taking hold of her left arm and the stranger of her right arm. She commenced screaming, and this other person told her to hush. Defendant shook a handkerchief in her face a time or two. The other man tripped her and threw her down, pulled up her clothes, and ravished her. Defendant was on the ground close to her feet, and, when called upon by the prosecutrix to help her, the stranger told him to stand back or he would shoot him. After this unknown man had accomplished his fiendish work, he left and the prosecutrix tried to get up; but the defendant grabbed her, pushed her back on the ground, pried her legs apart and got on her person, and she felt his private parts touch her private parts. She then and there became unconscious. This other man, who was doubtless Ben Byers, and who was described by her as a broad-shouldered man with thick arms and hands, had come up from behind the prosecutrix on the road and was driving a two-horse buggy. When the prosecutrix regained consciousness she was in the buggy with defendant, and the buggy went into a ditch. This aroused her, and she jumped out of the buggy and ran in the direction of where she heard some dogs barking, and presently came to the house of Mr. McGovern. As she ran she heard the defendant say that the buggy was broken all to hell. At Mr. McGovern's house she asked Sherman McGovern to go with her to hunt her cape and to go home with her, which he did. As soon as she reached home she told her mother what had occurred, and on the next day (Monday) she and her father made complaint to the prosecuting attorney. The drawers, underskirt, and waist of the prosecutrix were offered in evidence. The waist was torn in the back and sleeve, and the buttonholes of the skirt torn apart, and the garment otherwise injured. All of said garments were covered with mud, and the drawers and underskirts had blood on them. Prosecutrix testified that she resisted the defendant and the other man and fought them as well as she could.

Sherman McGovern testified that he saw the prosecutrix after midnight that night at his father's house; that her hair hung down around her shoulders; that the back of her dress was stained with dirt, and her dress torn at the waist; that she looked scared, was crying, and asked for some one to take her home. She stated that she had been to Salem schoolhouse to a supper, and was going home with the defendant, and that the buggy ran into a...