State v. Warren

• Decision Date: 07 February 1911
• Parties: THE STATE v. H. J. WARREN, Appellant
• Court: Missouri Supreme Court

134 S.W. 522

232 Mo. 185

THE STATE v. H. J. WARREN, Appellant

Supreme Court of Missouri, Second Division

February 7, 1911

Appeal from Newton Circuit Court. -- Hon. F. C. Johnston, Judge.

Reversed and remanded.

Geo. R Clay and R. H. Davis for appellant.

(1) An indictment or information against a defendant must contain an allegation of every substantive fact which the State is required to prove in order to secure a conviction. State v. Murphy, 141 Mo. 270; State v. Green, 111 Mo 585; State v. Reed, 117 Mo. 604; State v Evans, 128 Mo. 406; State v. Blan, 69 Mo. 317. (2) It devolves upon the State to prove beyond a reasonable doubt that the alleged injured party was so mentally deranged that she could not, at the time of the sexual act, give her consent. (3) Also to prove that defendant knew he had not her consent to the sexual act. 2 Bishop, Cr. Law (8 Ed.), secs. 1121, 1123; State v. Cunningham, 111 Mo. 382. (4) A judgment of conviction will not be permitted to stand when there is no other proof of the corpus delicti than the uncorroborated extra-judicial confession of the accused. 1 Bishop on Cr. Proc., sec. 1058; State v. Gorman, 54 Mo. 526. (5) Instructions 1 and 2 do not properly declare the law. 2 Bishop, Cr. Law (8 Ed.), secs. 1121, 1123. (6) Instruction 8 is erroneous.

Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.

(1) Sexual intercourse with an unsound or idiotic woman whose mind, to the knowledge of the man, is totally incapable of consenting to the act, is rape, though she submits to the act without resistance, for in such a case the intercourse is without her consent and against her will. 23 Am. and Eng. Ency. Law, sec. 7, p. 856. The mental condition of the woman is an important consideration in determining whether her submission is a matter of consent. State v. Huff, 164 Mo. 480; State v. Farr, 28 Ia. 397; State v. McDonough, 104 Ia. 6; R. S. 1909, sec. 4471. If a female is weak-minded and consents to the intercourse from animal instincts or morbid desires, the act is not rape. People v. Crosswell, 13 Mich. 427; State v. Cunningham, 100 Mo. 382; Reg. v. Connolly, 26 U. C. Q. B. 317. Absence of consent may be shown by proving that the woman was the subject of mania or idiocy, or asleep, or in a state of stupefaction or unconsciousness, when the act of intercourse took place. 10 Cyc. Ev., p. 585, sec. 2. (2) The information is sufficient, valid and properly charges the offense. State v. Goodale, 210 Mo. 275; State v. Burries, 126 Mo. 565; State v. Dilts, 191 Mo. 665. (3) The authorities hold to the rule: First. That if she was incapable of expressing consent or dissent, or of exercising any judgment upon the matter from imbecility of mind or defect of understanding, then appellant would be guilty. State v. Williams, 149 Mo. 496; Reg. v. Fletcher, 8 Cox 131; Reg. v. Ryan, 2 Cox 115; Wharton on Crim. Law (9 Ed.), sec. 560; People v. Griffin, 117 Cal. 585. Second. If the mind of the insane or idiotic woman was incapable of consenting to the act, though she submits to the act without resistance, the man must have knowledge of the condition of the mind of the woman at the time. Crosswell v. People, 13 Mich. 427; Reg. v. Connolly, 26 U. C. Q. B. 317. Resistance on the part of the female is not essential. State v. Tarr, 28 Ia. 397.

FERRISS, J. Kennish, P. J., and Brown, J., concur.

OPINION

FERRISS, J.

The defendant was convicted in the circuit court of Newton county of the crime of rape alleged to have been committed November 7, 1909, upon the person of Narcissa Foster, a married woman, and his punishment fixed at six years in the penitentiary. The trial proceeded upon the following information:

"Now comes Albert D. Bennett, prosecuting attorney within and for the county of Newton, State of Missouri, under his oath of office and upon his information and belief informs the court, and presents and charges to the court, that H. J. Warren, on the 7th day of November, A. D. 1909, at the county of Newton and State of Missouri, in and upon one Narcissa Isabella Foster, a female, unlawfully, violently and feloniously did make an assault, and her, the said Narcissa Isabella Foster, then and there unlawfully, forcibly and against her will, feloniously did ravish and carnally know, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State."

The evidence for the State preserved in the record shows that at the time of the trial, in March, 1910, the prosecutrix was nineteen years old, had been married over two years, had been in an insane asylum once before she was married and once afterwards, three or four months at a time, the last time being six or eight months prior to the alleged rape. Her mind, according to her husband's testimony, "has been fairly well since we were married." The maternal grandmother and one maternal aunt were in the asylum at the time of the trial, and had been there twelve years. The following question was asked of her father: "I will ask you what has been her mental condition?" A. "Well, it has been bad. I believe this is the third time she has been this way." Also, Q. "And she was discharged as cured by the asylum authorities?" A. "I suppose so."

Prosecutrix had had no children. On November 3, 1909, prosecutrix paid a visit to the home of her parents, whom she had not seen for a year and a half, going there by train alone. When she left her husband on this occasion there was nothing unusual in her condition. She was talking a good deal about going home. She stayed at her father's house Thursday, Friday and Saturday, and was in a normal condition during this time, save that on Saturday, when she left to meet her husband, as she claimed, at Neosho, "she seemed a little bit restless." During this visit she seemed to be in average health. There had not been anything unusual in the letters which she frequently wrote home, except that her last letters showed nervousness in the handwriting. On the last night of her visit she seemed a little restless, and wanted to sit up and talk, but there was nothing unusual in her manner of conversation. Her father and mother drove her to the railway station in a buggy on Saturday, November 6th, bought her a ticket to Neosho, and put her on the train which left the station at 5 p. m., and she made the journey alone. On November 3d the husband left his wife at home, and went to Mosely Mines, it being then understood that she was to visit at her father's until the Saturday following. The train was due at Neosho about 12:30 Sunday morning, November 7th. Whether the train was late does not appear. At about 2 o'clock that morning the prosecutrix appeared at the Central Hotel, in Neosho, with the defendant, who registered his own name. The proprietor, J. B. Loher, asked him, "Is this your wife?" He answered, "Yes." Then, at Loher's request, defendant added to his name the words "and wife." Upon it being stated that he registered from Springfield, the woman said, "I am not from there," or something of that kind. The defendant told her, "That is all right." The following testimony, in addition to the above, was given by Loher:

"Q. What was her actions at that time? A. Well, she was talking pretty loud when she came in; kept talking loud along. I was rather under the impression she was full of dope of some kind, cocaine, or something of that kind, the way she was talking. Q. Did the defendant talk much? A. No, he didn't have much to say. Q. How did she talk, as to whether she was talking loud or low? A. She talked loud. Q. State whether or not she was talking rapidly or slowly? A. She was talking pretty rapidly. Q. Then, what did you do after they registered? A. I took them to room number eight. Q. State whether or not they both went in the room? A. Yes, sir. Q. How many beds in that room? A. Just one. Q. You may state to the jury what happened, if anything that you knew about, whether or not as to the noise? A. I was down stairs, and I could hear them talking, especially her. I could not hear him very much. Once in a while I could hear him say something, but could not distinguish what they were saying. They kept it up all the time; and about six o'clock in the morning, they kept it up so, I was upstairs, and I didn't know that she had gone out of the room, but she came running upstairs. She had got out, and went down stairs, and I think went to a drug store. She came back and went to the room. I followed them right to the room, and opened the door, and he was in bed. I told him I wanted him to get up and pay his bill, and get out of there; that he was creating too much disturbance. He said he would get up after a bit. I said, 'You will get up right now; I will stay right here until you get up and pay your bill and get out of here.' So he got up. Q. Was there any bed made down, or anything? A. No, sir."

At the time they left the hotel, Loher says, "she was talking wild all the time. I can't remember what she did say; she was talking loud."

There was no other material testimony in chief of eye-witnesses introduced by the State as to the conduct or conversation of prosecutrix prior to six o'clock, Sunday morning, November 7th.

The State's testimony in chief showed further that on Sunday the 7th, at eight or nine o'clock, the prosecutrix was found wandering on the streets of Neosho in a state of mental aberration. The sheriff testified that she told him of being robbed on the train, and that he thought her crazy; that he sent for the city marshal, and, upon what she and others said, arrested defendant and put him in jail; that she talked wildly, saying her husband was a fugitive from justice and a deserter from the army, and that his brother killed a man. He...