State v. Wilkins

• Decision Date: 17 November 1936
• Docket Number: No. 34831.,34831.
• Citation: 100 S.W.2d 889
• Parties: STATE v. WILKINS et al.
• Court: Missouri Supreme Court

100 S.W.2d 889

STATE v. WILKINS et al.

No. 34831.

Supreme Court of Missouri, Division No. 2.

November 17, 1936.

Appellants' Motion for Rehearing Overruled December 23, 1936.

Appeal from Circuit Court, Dunklin County; Jas. V. Billings, Judge.

Chester Wilkins, Dewey Hardin, and Robert Davis were convicted of rape, and Chester Wilkins and Dewey Hardin appeal.

Judgments affirmed.

Bradley & Noble, of Kennett, for appellants.

Roy McKittrick, Atty. Gen., and Wm. W. Barnes, Asst. Atty. Gen., for respondent.

WESTHUES, Commissioner.

Chester Wilkins, Dewey Hardin, and Robert Davis were jointly charged, by an information filed in the circuit court of Dunklin county, Mo., with the crime of rape, alleged to have been committed on one Cleo Marshal, on the 24th day of September, 1934. On a trial all were convicted. Wilkins received a punishment of ten years' imprisonment in the penitentiary, Hardin five years', and Davis two years'. Wilkins and Hardin appealed.

Cleo Marshal was a married woman about twenty-seven years of age, who lived east of Cardwell in Dunklin county, Mo. The defendants and Mrs. Marshal had never met prior to the date of the alleged offense. The defendants were in a car traveling east from Cardwell on highway No. 25. Prosecutrix had been to Cardwell and was walking home when she was overtaken by the defendants. According to the evidence of prosecutrix, Wilkins asked her if she wanted to ride and she replied she did not. The defendants drove on about 75 yards, then stopped and backed the car until they came to prosecutrix. She testified that Hardin then got out and asked her to ride; that when she refused Hardin took her by the arm and forced her into the car; that she then attempted to scream, but he placed his hand over her mouth. When the car reached the home of Mrs. Marshal, she asked them to let her out because she had a sick child at home. This request was refused and defendants drove on. When they passed various houses along the road, Hardin would place his hand over prosecutrix' mouth to prevent her from screaming. After driving east on highway 25 for some distance, they turned off on another road, or lane, for about a mile or more and then stopped their car. Wilkins then forced prosecutrix out of the car threatening her with a revolver if she did not comply with his demands. He took prosecutrix down the road a distance, forced her to take off her step-ins and forcibly ravished her, again using the gun in a threatening manner. During this time Davis and Hardin remained in the car. After Wilkins had accomplished his purpose, he returned to the car with prosecutrix. While they were thus returning, Mrs. Marshal asked Wilkins not to let the other boys assault her, and said she would get some girls for them if they would not. When they reached the car, she told Hardin and Davis the same thing. She testified that her purpose was to get away. Davis and Hardin, however, refused and informed her that she would have to submit to their demands. She then grabbed her groceries and ran down the road away from the car. Davis and Hardin followed her for some distance, Davis threatening to shoot her if she did not stop. About this time a car was approaching and Davis and Hardin returned to their car. When the approaching car reached her, prosecutrix asked the driver, a Mr. Workman, to take her home. Workman did so.

Defendants' version of this affair was that as they approached Mrs. Marshal she waived to them to stop; that when they did so she asked for a ride; that she voluntarily entered the car without aid of the defendants; that the defendants were riding in the front seat and Mrs. Marshal in the back seat alone; that after she had been in the car only a short time she asked for, and was given, a cigarette which she smoked; that a conversation began and they asked her if she was married; that she replied "Yes" but that her husband was in a CCC camp in Arkansas. Hardin testified that the following conversation then occurred:

"Q. Was anything said about stepping out while she was in the car? A. Yes. When she said she was married Chester asked if she ever stepped out on her old man, and she said `Yes, sometimes'.

"Q. Anything said about some money? A. Yes, sir.

"Q. What was said? A. I told her I had 3 or 4 dollars and she said — I told her I had 3 or 4 dollars and if she wanted to have that to buy medicine for the kids she could have it and she said no, she didn't want it that way but she would go out with us if we would bring her back and I said we would sure bring her back.

"Q. Did she say anything about stopping at the third house as you went by? A. No, sir.

"Q. Do you know where that cross-lane is? A. Yes.

"Q. Did you stop the car south of that cross-lane? A. Yes.

"Q. About how far? A. About 90 or 100 yards.

"Q. Did you stop the car on the roadway? A. Yes, sir.

"Q. What took place when you stopped the car? A. Well, when the car stopped she got out on the right hand side and Wilkins got out — when she got out she said `Which one is going down the road first' and Wilkins got out on the left hand side and said `I will go', and they went down the road.

"Q. Did you notice them as they walked down the road? A. I saw them when they were about 25 yards from the car.

"Q. Did you notice them any more? A. No, sir."

Hardin testified that while Wilkins and prosecutrix were away he and Davis remained in the car. He further testified:

"Q. How long were they gone? A. Not over five minutes.

"Q. Had you noticed them coming back? A. No, sir.

"Q. Where was Mrs. Marshal when you first noticed them after they returned to the car? A. She walked up to the car and asked me to hand her the things and when she reached over to get her things she said `G — D, it looks like we are caught' and she said `Don't you see that car there?' and I looked back and saw the car. * * *

"Q. Now, did she run away from the car? A. No, sir, she did not.

"Q. Did you follow her up the lane? A. No, sir. I didn't get out of the car.

"Q. Did Davis follow her up the lane? A. No, sir. He didn't get out of the car.

"Q. Did you or Davis or Wilkins keep Mrs. Marshal from doing just as she pleased? Holler or talk or get out or anything she wanted to do? A. No, sir. We didn't bother her in any way."

Wilkins and Davis testifying in their own behalf corroborated Hardin in his testimony as to what had occurred prior to the time the car was parked on the side of the road. Wilkins denied having had intercourse with prosecutrix either forcibly or with her consent. He testified that after the car was stopped the prosecutrix got out of the car first and the following occurred:

"Q. Then what did you do? A. Before I got out she asked which one wanted to go down the road with her.

"Q. Was that after you stopped or before? A. After we stopped.

"Q. Then what was said about which one would go? A. Well, we sat there a second or two and I said `Well, I will go.'

"Q. Did you go down the road with her? A. Yes, sir.

"Q. How far from the car did you go? A. Approximately 40 or 50 yards.

"Q. Down the road and did you go down in the ditch? A. No, sir.

"Q. What was said down the road? A. I says `You are pregnant, aren't you?'

"Q. Had you noticed that she was? A. After we got out of the car.

"Q. You thought from her appearance that she was pregnant? A. Yes, sir.

"Q. What did she say then? A. She said she was pregnant.

"Q. Then what did you say? A. I said I didn't want to have anything to do with her.

"Q. Did you have anything to do with her? A. No, sir.

"Q. Did you have intercourse with her? A. No, sir.

"Q. Did you have a gun on that occasion? A. No, sir. * * *

"When she told you she was pregnant what did you do after that? A. I told her I didn't want to have nothing to do with her and we turned around and came back to the car.

"Q. Was she pleasant and laughing? A. Yes, she didn't say anything that I can recall.

"Q. Did she say anything to you about you not letting these other two have anything to do with her? A. She didn't say a word.

"Q. Did that happen? A. No, sir."

Appellants' motion for new trial contains only forty-nine assignments of error. These were briefed under twenty-eight topics. Many are duplications and the ruling on some points will dispose of others.

The sufficiency of the evidence to sustain a conviction was challenged. In addition to the evidence related, the record contains other evidence which corroborated the evidence of prosecutrix. In her testimony she described the underclothing worn by Wilkins on the day of the assault. Wilkins admitted he owned such garments, but did not remember if he had worn them on the day of the alleged assault. A witness named Henry Gibbs lived near the road over which appellants passed with prosecutrix. He testified that he was on the porch and saw a car pass, describing it as the car in which appellants were riding. On cross-examination he testified:

"Q. Do you know this man Workman? A. No, I don't reckon I do.

"Q. Did any other car pass your house after the first car passed? A. Well, yes, if I can recall — the Watkins man's car was parked at my house and there was a car passed and I made the remark that it was a bunch of drunk fellows and the Raleigh car followed after it.

"Q. The car passed that you said was a bunch of drunk fellows and they were all laughing and having a big time, weren't they? A. They were scuffling with their elbows and things like that.

"Q. Laughing and having a good time? A. I just seen the scuffling.

"Q. That was in the front seat or back seat? A. I wouldn't say but they were scuffling.

"Q. Scuffling and playing? A. I wouldn't say whether they were playing but they were scuffling."

The witness Workman, referred to above, testified that he was selling Raleigh goods and was driving a Raleigh car. Workman also testified that he took prosecutrix home immediately after the occurrence; and that she appeared to be scared and nervous; that her clothing was...