The State v. Campbell
| Decision Date | 17 March 1908 |
| Citation | 109 S.W. 706,210 Mo. 202 |
| Parties | THE STATE v. BRUCE CAMPBELL, Appellant |
| Court | Missouri Supreme Court |
Appeal from Greene Criminal Court. -- Hon. A. W. Lincoln, Judge.
Reversed and remanded.
George Pepperdine and Delaney & Delaney for appellant.
(1) On the whole evidence, the trial court should have directed an acquittal, and the judgment of this court should be a discharge of the defendant, because there is no substantial evidence to sustain the verdict. To constitute the crime of rape, a penetration must be shown, and this penetration must be accomplished by force and violence sufficient to overcome the utmost resistance of the prosecutrix, or the penetration in the absence of force and violence, must be accomplished by fear or threats, dispensing with and excusing the resistance otherwise required. The indictment does not aver that the alleged rape was committed by threats, or by intimidation, or by putting in fear; nor is there a scintilla of evidence tending in the remotest degree to show that the alleged rape was in such way and by such means committed. On the contrary the indictment charges force and violence, and the entire evidence, if of any probative force whatever, tends to show that the rape, if committed, was the result of force and violence. This being so, the doctrine of utmost resistance is applicable. As there is no substantial evidence that force and violence were used, this conviction cannot stand unless the court repudiates the doctrine of resistance. If the distinction between rape committed by force and rape committed by intimidation is borne in mind the seeming conflict in the decisions will disappear. All of the cases recognize this distinction. State v. Burford, 53 Mo 65; State v. Joeger, 66 Mo. 173; State v. Perkins, 11 Mo.App. 82; State v. Patrick, 107 Mo. 147; State v. Dusenberry, 112 Mo. 277; State v. Murphy, 118 Mo. 7; State v. Montgomery, 63 Mo. 296; State v. Priestly, 74 Mo. 24; State v. Cunningham, 100 Mo. 38; State v. Shroyer, 104 Mo. 441; State v. Dalton, 106 Mo. 463; State v. Whitsell, 111 Mo. 202; State v. Scholl, 130 Mo. 396; State v. Hayden, 141 Mo. 311; State v. Harris, 150 Mo. 56; State v. Huff, 161 Mo. 459; State v. Neal, 178 Mo. 63; State v. Owsley, 102 Mo. 678; State v. Marks, 140 Mo. 656; State v. Edie, 147 Mo. 535; State v. Hamey, 168 Mo. 167; Champaigne v. Hamey, 189 Mo. 709. The State predicates the verdict upon the theory that force and violence were used to overcome prosecutrix, and therefore the doctrine of utmost resistance is applicable. We respectfully submit that an analysis of the testimony will absolutely dispel the idea of force in a legal sense and will stamp this verdict as being the result of prejudice aroused by the heinousness of the offense charged. (2) Section 38 of article 6 of the Constitution provides that all indictments shall conclude "against the peace and dignity of the State." This provision is mandatory and a constitutional provision cannot be destroyed by inferences and refuge cannot be taken behind the plea of clerical error or omission. State v. Lopez, 19 Mo. 254; State v. Clevenger, 25 Mo.App. 653; State v. Pemberton, 30 Mo. 376; State v. Stacy, 103 Mo. 11; State v. Schloss, 93 Mo. 61; State v. Ulrich, 96 Mo.App. 689; State v. Hays, 78 Mo. 600; State v. Reakey, 1 Mo.App. 3; State v. Waters, 1 Mo.App. 7. No indictment has ever been sustained that did not aver that the act complained of is "against the peace and dignity of the State."
Herbert S. Hadley, Attorney-General, and John Kennish, Assistant Attorney-General, for the State.
(1) The indictment is sufficient. Complaint is made that the indictment does not comply with section 38 of article 6 of the Constitution of this State, in that, in the concluding portion thereof, "against the peace and dignity of State," the word "the" is omitted immediately preceding the word "State." State v. Watters, 1 Mo.App. 9; 1 Bish. New Crim. Proc., p. 652. The article "the" is an unimportant word frequently omitted in common conversation and in writing where it could properly be used, and in some languages, as the Latin, being supplied when necessary, there being no specific word to represent it. And under the law its omission clearly did not invalidate the indictment. (2) It is shown in evidence that shortly after the alleged assault the prosecuting witness started on foot to Springfield, and that the defendant's nearest neighbor, Mrs. Garton, seeing her condition, called to her to stop. Appellant contends that the court erred in permitting the prosecutrix and Mrs. Garton to testify as to what occurred between them. Mrs. Garton testified to the appearance and condition of the prosecutrix when she saw her, and as this was very shortly after the time of the alleged assault, and the first person whom the prosecutrix had seen thereafter, this evidence was undoubtedly competent. State v. Sanford, 124 Mo. 484; State v. Murphy, 118 Mo. 7; State v. Dusenberry, 112 Mo. 277; 2 Bishop's New Crim. Proc., 963. Mrs. Garton was asked whether the prosecutrix had reported what defendant had done to her that day. She answered that she did not, and that the reason she did not was because she told the prosecutrix she did not want to hear it. The prosecutrix testified that she told Mrs. Garton the defendant had insulted her, and that she was going to have him arrested. Upon Mrs. Garton's suggestion and direction, she went directly from Mrs. Garton's about three miles, to the home of Mr. Cantrell, a justice of the peace, and there, between one and two o'clock of the same day, informed Mrs. Cantrell, the wife of the justice, of the assault, but did not detail the particular facts thereof. This testimony was admitted over the defendant's objection. It will be observed that the testimony as to what the prosecutrix said, both to Mrs. Garton and to Mrs. Cantrell, is limited to the mere fact that she made complaint of the outrage committed upon her, but does not give the particular facts or details thereof, and as this occurred within a few hours after the alleged offense, so soon, in fact, that the witness had done nothing else except to take steps to redress the wrong done to her, such evidence was entirely competent under the well-settled law. State v. Wertz, 191 Mo. 578; 2 Bishop's New Crim. Proc., sec. 965; Kelley's Crim. Law and Prac., sec. 541; Underhill on Crim Evid., sec. 409; State v. Marcks, 140 Mo. 656; State v. Bateman, 198 Mo. 212; State v. Warner, 74 Mo. 83. (3) The evidence of Doctor Carter as to the condition of the prosecutrix as disclosed by an examination made on the third day after the alleged assault, was competent under all the authorities. State v. Scott, 172 Mo. 536; Underhill on Crim. Evid., sec. 412.
From a judgment of conviction in the criminal court of Greene county upon a charge of rape, defendant appeals. The indictment upon which this prosecution is based, is as follows:
After two continuances upon the application and at the instance of the defendant, the cause was tried at the July term, 1906, of said Greene County Criminal Court. On July 23, 1906, defendant filed his motion to quash the indictment, which motion was on the same day overruled by the court and an exception saved to such ruling. Thereupon on the same day defendant filed a motion to quash the regular panel of jurors. Evidence was offered by the defendant to the court in support of the motion to quash the panel, at the close of which the motion was overruled and an exception saved.
The evidence for the State tended to prove the following facts:
The prosecuting witness, Willie Clark, was an unmarried female and at the time of the alleged offense was between eighteen and nineteen years of age. She had come from Arkansas, her native State, to Greene county, Missouri, but a few months before. When she was an infant her mother had died, and thereafter she had never lived with her father and had rarely seen him, but had been reared and had always lived with a Miss Ray in the State of Arkansas until the 15th day of March, 1905. She had been informed that her father and brother were living in Joplin, Missouri, and intending to go to them, she made preparations for the trip, Miss Ray assisting her, and on the last-named date started for this State in a wagon with a family named Corneilson. This family, for some time before, had been living in the same house with Miss Ray and the prosecuting witness. The Corneilsons were poor and did not own a team and wagon, and the trip was made by hiring a team and wagon to take them from place to place on their journey. Miss Ray had provided the prosecuting witness with a satchel containing clothing and $ 15.50 in money, which money and clothing she had placed in the care of the Corneilson family. Before leaving Arkansas, the...
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