State v. Wilson

• Decision Date: 21 March 1887
• Citation: 3 S.W. 870,91 Mo. 410
• Parties: The State v. Wilson, Appellant
• Court: Missouri Supreme Court

3 S.W. 870

91 Mo. 410

The State v. Wilson, Appellant

Supreme Court of Missouri

March 21, 1887

Appeal from St. Louis County Circuit Court. -- Hon. W. W. Edwards Judge.

Reversed.

A McElhinney for appellant.

(1) The instructions given by the court did not cover all the law in the case. This they should have done. R. S., sec. 1908; State v. Banks, 73 Mo. 592; State v. Brady, 87 Mo. 142. The jury were not told that to constitute rape there must be the utmost reluctance, and the utmost resistance on the part of the prosecutrix. State v Burgdorf, 53 Mo. 65. So the jury should have been told the effect of the prosecutrix not having made complaint or outcry immediately after the alleged rape. Roscoe's Crim. Evid. [7 Ed.] 879. (2) The court erred in refusing to give the instruction asked by defendant. (3) The judgment is not supported by the evidence.

B. G. Boone, Attorney General, for the state.

(1) To the admission or exclusion of testimony, defendant, at the time, saved no exceptions, and will not be heard to complain. State v. Barnett, 81 Mo. 119; State v. McDonald, 85 Mo. 539; State v. Burk, 89 Mo. 635. (2) The instructions are sufficiently comprehensive, and correctly declare the law. R. S., sec. 1253. (3) A judgment, even in a criminal case, will not be reversed on the ground that the verdict was against the evidence, unless there is a total absence of evidence, or it fails so completely to support the verdict that the necessary inference is that the jury acted from prejudice or partiality. State v. Musick, 71 Mo. 401; State v. Warner, 74 Mo. 38; State v. Hammond, 77 Mo. 159. (4) On the trial of an indictment for rape, where there was direct conflict between the testimony of the prosecuting witness, who testified to all the material facts necessary to establish the charge, and that of defendant, who testified in his own behalf, upon the question of her consent, it being the peculiar duty of the jury to determine the credibility to be attached to witnesses, this court will not interfere with the judgment if no error appears in the record to justify a reversal. State v. Hert, 89 Mo. 590.

OPINION

Norton, C. J.

Defendant was indicted, tried, and convicted of the crime of rape, in the circuit court of St. Louis county. From the judgment of conviction he appeals to this court, and for reversal of the judgment relies upon the ground that the verdict is against the weight of evidence, and that the court refused proper instructions asked by the defendant.

Cora Leis, a girl about sixteen or seventeen years old, upon whom it is alleged the outrage was perpetrated, testified substantially as follows: That on the twenty-fifth of July 1885, she was living with her father, who, with her mother, had on that day gone to the city of St. Louis; that her younger sister was at home with her younger brother, somewhere about the place; that while she was in the front bedroom, and her sister in the kitchen, she saw defendant in the only door leading from the room she was in and said to him, "what are you doing here?" to which he made no reply, and as she tried to pass him he caught her in his arms; that she cried out, and he said if she made any noise he would kill her; that he threw her on the bed, and when she again tried to cry out he put his hand on her mouth and said he would kill her; that he put his legs between her's and had connection with her; that she tried to prevent him, but could not; that a child was born of that connection on the eighteenth of April, 1886; that defendant, after this, remained for three or four days working on her father's place, as he had done for two or three months, and was then discharged; that her father and mother came home that evening, and she said nothing to either of them about what had happened, or to any one till about five months afterwards, when her father forced her to tell, and she then told him it was the defendant, and the time; that during these five months defendant worked at Mr. Pearce's, their nearest neighbor, and who lived, according to other evidence, about one hundred and twenty-five yards from her fathe...