State v. Wilcox
| Decision Date | 10 October 1892 |
| Citation | 20 S.W. 314,111 Mo. 569 |
| Parties | The State v. Wilcox, Appellant |
| Court | Missouri Supreme Court |
Appeal from Macon Circuit Court. -- Hon. Andrew Ellison, Judge.
Affirmed.
Dysart & Mitchell for appellant.
(1) The third instruction given for the state is fatally defective. The girl Ollie testifies that at least forty-eight of the seventy-five rapes committed on her were committed in Randolph county. The third instruction is not restricted to any time or place, but tells the jury to convict if defendant had intercourse with her while under fourteen. For aught that appears, under this instruction, the jury may have found defendant guilty of some offense committed in Randolph county. He is only charged with an offense committed in Macon county, and if he committed an offense in Randolph county he is liable to be prosecuted there. Constitution, 1875, art. 2 sec. 22; State v. Hatch, 91 Mo. 568; State v Burns, 48 Mo. 438. (2) The court should have instructed the jury that they ought not to find defendant guilty on the uncorroborated evidence of the prosecuting witness, where the defendant denied the charge in his testimony, even if no such instruction was asked by the defendant. State v Patrick, 107 Mo. 147-171. (3) The evidence is insufficient to support the verdict. State v. Patrick, 107 Mo. 173.
John M. Wood, Attorney General, for the State.
(1) The indictment charges the offense in the language of the statute, and is sufficient. State v. Houx, 109 Mo. 654; Revised Statutes, sec. 3480; State v. Meinhart, 73 Mo. 562. (2) The instructions properly submitted the case to the jury, and are correct. See above authorities. (3) No exceptions were saved to the admission or rejection of testimony. State v. Johnson, 76 Mo. 121. (4) The allegations in the motion for a new trial as to the statements of the prosecuting attorney were not proved. State v. McDaniel, 94 Mo. 301.
Defendant was convicted in the circuit court of Macon county of rape, by carnally knowing Ollie Wilcox, a female child under fourteen years. From the judgment he has appealed to this court.
The evidence of complaining witness, if true, discloses a most revolting picture of domestic life. She testified that defendant was her father, and that she was fourteen years old May 10, 1891, and that from the time she was eight years old until April, 1891, he had defiled her at intervals of every few weeks, the last time in Macon county in April, 1891.
Without objection, she detailed by her evidence that when she was eight years old, in Randolph county, the defendant first carnally knew her. At that time he bruised and tore her so that she was confined to her bed for a number of days; that from that time until she became fourteen years of age, these assaults were repeated every few weeks. After the first assault, she told her mother, but not until she had examined her and found blood and bruises. She told no one after that until July, 1891, when she told her half sister. She told it then because she was "tired of living that way." Did not tell it before because she was afraid of defendant who said he would kill her if she told. Defendant told her that all fathers did that way with their girls.
She removed to Macon county with her father's family about two years prior to the trial which occurred October 26, 1891. The testimony of this witness was all the evidence offered by the state in chief.
The defendant testified in his own behalf, and contradicted every charge testified to by the prosecutrix. He also gave a history of his relations with his family, and showed that they were invariably good; that within the last few years he was frequently away from home, as much as weeks and months at a time. In all of this he was corroborated by his son, Willie, eighteen years of age, who further testified that his father's treatment of his wife and children was good, and that he had never seen or heard of any misconduct between his father and Ollie until after the arrest; that he was raised and had lived in the family all his life except a few months he had worked out.
Dr. Pickett testified to the improbability, and almost impossibility, of the story related by the prosecuting witness.
Three other witnesses, relatives of Ollie Wilcox, testified that a few days before the arrest of defendant, she vehemently protested that her father had never mistreated her and threatened to shoot the man who said it. One witness testified that Ollie had told her that this lie had got out through the Cohorns, and that there was a man she could ruin by laying her hands on him, George Stanfield, son of Mrs. Cohorn. Prosecuting witness contradicted these witnesses in her testimony.
An effort was made to impeach the character of defendant for truth. Three witnesses with some qualifications testified that his reputation was bad, while four gave evidence tending to prove it good.
The court gave, with others, the following instructions: "The jury are instructed that although they may believe from the evidence that in the commission of the offense charged there was no force used by the defendant on Ollie B. Wilcox, yet if the jury believe from the evidence that at any time in the county of Macon before the finding of the indictment in this cause, and while she was under fourteen years of age, the defendant had carnal intercourse with the said Ollie B. Wilcox, then you will find the defendant guilty.
The last paragraph of this instruction is taken by defendant's counsel as an independent instruction. The record gives it as above, the instructions are not numbered, and we must take and treat them as they appear upon the record.
I. It is urged with great earnestness by counsel for defendant that the uncorroborated evidence of Ollie Wilcox, the...
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