The State v. Bateman
| Decision Date | 03 July 1906 |
| Parties | THE STATE v. BATEMAN, Appellant |
| Court | Missouri Supreme Court |
Appeal from Lawrence Circuit Court. -- Hon. F. C. Johnston, Judge.
Affirmed.
Henry C. Young for appellant.
(1) The verdict is so clearly against the weight of the evidence, and is so manifestly the result of prejudice and passion, that this court is fully warranted in reversing the judgment and remanding the cause for a new trial. State v Patrick, 107 Mo. 147; State v. Huff, 161 Mo 459; State v. Prendible, 165 Mo. 329; State v Nesenhener, 164 Mo. 461. (2) Medical proof of the condition of the private parts and lower limbs of prosecutrix immediately after the assault was attainable, and yet no such proof was offered by the State. "And the practice seems to be, judging from the case just cited, not to permit a conviction in those cases in which it is alleged violence was done, without medical proof of the fact, whenever such proof is attainable." 1 Whart. Cr. Law (9 Ed.), secs. 555, 565; State v. Dickson, 78 Mo. 447; State v. Burgdorf, 53 Mo. 65. (3) The charge of rape is unsupported save by the ipse dixit of the prosecutrix and is contradicted by all of the surrounding facts and circumstances. Her action in swearing out a warrant against the defendant for a common assault within a few hours after the occurrence is so entirely inconsistent with human experience of the conduct of a ravished female, and so consistent with the defendant's statement, as to exclude the reasonable probability of his guilt. State v. Patrick, 107 Mo. 147; State v. Huff, 161 Mo. 459; State v. Dickson, 78 Mo. 447; Champagne v. Hamey, 189 Mo. 709; State v. Musick, 101 Mo. 271. (4) The court erred in permitting witnesses Belle Bilue and Lucy Siler to give the particulars of the offense as detailed to them by prosecutrix. State v. Jones, 61 Mo. 235; 3 Russell on Crimes, 232; 23 Am. and Eng. Ency. Law, 874; State v. Wertz, 90 S.W. 841. Nor did the action of the prosecuting attorney, at the close of all the evidence in the case, in withdrawing from the consideration of the jury "the details of this occurrence" and the details of the conversation as related by these witnesses, "but leaving for their consideration the main fact that she simply made complaint of the outrage," have the effect of curing the error. State v. Fredericks, 85 Mo. 150; State v. Thomas, 99 Mo. 235; State v. Hopper, 71 Mo. 425; Robbins v. State, 83 S.W. 693. (5) The court erred in permitting the prosecuting attorney to lead his witnesses throughout the trial of the case. State v. Boyd, 178 Mo. 2; State v. Wertz, 90 S.W. 843. (6) The court erred in permitting the State to elicit from witness Rickman on cross-examination the statement that prosecutrix told him in reply to his questions that defendant forced her to consent to his wishes. State v. Patrick, 107 Mo. 147; State v. Burgdorf, 53 Mo. 65. (7) The court erred in permitting the State to bolster up prosecutrix's reputation for chastity and good conduct before it had been impeached. State v. Huff, 161 Mo. 459; State v. Patrick, 107 Mo. 488. (8) The court erred in the giving of the fourth instruction at the instance of the State. In defining the doctrine of reasonable doubt the court cast upon defendant the burden of establishing his innocence. State v. Blue, 136 Mo. 41.
Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
(1) (a) State's witness Belle Bilue testified to the complaint made to her by prosecutrix a short time after the commission of the crime charged. In fact, this complaint was made before prosecutrix had gotten out of bed and only a few minutes after defendant had left the room. This was clearly admissible as a part of the res gestae; and also admissible as being a recent complaint of the rape just commited. State v. Patrick, 107 Mo. 163; State v. Warner, 74 Mo. 86; Stevens v. Walpole, 76 Mo.App. 220; 3 Greenl. on Evid., sec. 213; Roscoe's Crim. Evid. (7 Ed.), 879; Wharton's Crim. Evid. (7 Ed.), sec. 273. But even if error was committed in admitting said evidence, the trial court afterwards, at the request of the State, withdrew said evidence and instructed the jury not to consider the same. (b) The asking of leading questions is always a matter to be addressed to the discretion of the trial court. In view of the charge against the defendant, and the natural modesty and hesitation of all women who are called to testify in such a case, it cannot be said that the trial court abused its discretion. State v. Whalen, 148 Mo. 290; State v. Napper, 141 Mo. 401. (c) Defendant also objected to defendant's witness Rickman's answering the State's questions as to what the prosecutrix said to him about being raped by defendant. Defendant placed this witness on the stand -- he was a justice of the peace -- and proved by him that prosecutrix made complaint to him at first of an assault made by defendant. That afterwards, when no one was in his office she returned and told him all about it, and made the present complaint. Defendant having brought out a part of the conversations that this witness had with prosecutrix, the State was entitled to have all of said conversations detailed. State v. Moore, 156 Mo. 211; State v. Sassen, 75 Mo.App. 201. (2) The evidence discloses the commission of a crime which is one of the most revolting that has ever been committed in this State, and is sufficient to support the verdict. State v. Dusenberry, 112 Mo. 296; State v. Boyd, 178 Mo. 19; State v. Miller, 111 Mo. 552; State v. Wilcox, 111 Mo. 575; State v. Yocum, 117 Mo. 626; State v. Sanford, 124 Mo. 487; State v. Dilts, 90 S.W. 782.
At the March term, 1905, of the circuit court of Lawrence county, upon an information duly verified and filed by the prosecuting attorney of said county, the defendant was convicted of the crime of rape, and his punishment assessed at death. Defendant's motions for new trial and in arrest having been overruled, he perfected his appeal to this court.
At the time of the commission of the alleged assault, the defendant, a negro, twenty-two years of age, was employed as day porter in the hotel of E. J. Shelpman, at Aurora, Lawrence county. Myrtle Digby, the prosecutrix, a white girl, twenty years of age and unmarried, was employed as waitress and chambermaid at the same hotel, and had been working there for about a week prior to February 28, 1905, the date of the alleged assault. Her room was on the third floor of said hotel building, and defendant's room was some distance away in an attic of the building. A gravel roof extended from just under the window of the room occupied by the prosecutrix and over the window of the room occupied by the defendant.
The State's evidence tended to prove that the prosecutrix had retired early, and that about midnight she was awakened by the presence of defendant in her bed. She asked who it was, and defendant replied that it was Peck, alluding to the hotel clerk, and told her to hush up. She told him to get out, but defendant immediately put his hands on her throat and grabbed her arm in his teeth which he bit severely. He then told her that she might as well behave and submit to him, for he was going to have what he came in for if they hung him. The prosecutrix screamed several times and struggled to free herself from the clutch of the defendant, but he nevertheless succeeded in having sexual intercourse with her. He then made his escape through the window and went to his room, but before leaving he told the prosecutrix he would kill her if she moved while he was in there. While defendant was on the bed with her the prosecutrix heard footsteps at the door and heard some one turning the door knob, but the defendant prevented her from screaming by grabbing her throat. As soon as he left she unlocked the door and found Mr. Shelpman and the night porter there. The porter had heard the girl's screams and he awoke Mr. Shelpman and both came up to see what was the matter. She immediately told them of the assault made upon her by the defendant and showed them the marks of his teeth upon her arm and the finger prints and bruises on her neck. Her night clothes were torn, the bed clothes rumpled and some of them on the floor, and the rugs on the floor disarranged. Meanwhile Miss Belle Bilue and Miss Lucy Siler, who were also employees in the hotel, came out in the hall, and to them the prosecutrix made complaint in full. They stayed with her the remainder of the night in another room. Mr. Shelpman went to the defendant's room and found him in bed, but not asleep. Defendant told him that he had been down to the brick hotel to sing with another negro.
Thomas Collins, night porter at the hotel, testified that the defendant came in that night about half past eleven o'clock, and that he remarked to the defendant that he was a little "jagged," and defendant replied, "No, I ain't, I am going to bed." That about ten minutes later he heard the girl scream, and he grabbed a club and went up to the door of her room, but could not get in, as the door was locked. That she kept hallooing, and he went down and awoke the landlord, and both went up after the landlord had put on his clothes. That he proposed pushing the door open, but the landlord would not allow him to do that. After a little while the girl opened the door and said, "Tom, it was a nigger." He asked her what nigger, and she said, "The day porter." Witness also testified that on the morning before the assault he heard the defendant express a desire to have sexual intercourse with the prosecutrix.
The defendant's testimony was to the effect that the first day the prosecutrix began working at the hotel she made advances to him, and suggested that he get men...
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