The State v. Catron
| Decision Date | 23 July 1927 |
| Docket Number | 27898 |
| Citation | 296 S.W. 141,317 Mo. 894 |
| Parties | The State v. Victor Catron, Appellant |
| Court | Missouri Supreme Court |
Appeal from Circuit Court of St. Louis County; Hon. G. A Wurdeman, Judge.
Affirmed.
George F. Heege and J. C. Hoester, Jr. for appellant.
(1) The court erred in overruling defendant's instruction in the nature of a demurrer to the evidence at the close of the State's case. (a) To establish the crime of rape there must be: First, an assault and sexual intercourse, that is, a penetration of the female organs by the male organ; second this penetration must be by force and against the will of the female; and, third, it must be without any consent whatever upon the part of the female and the utmost reluctance must be manifested and the greatest resistance offered by the female to the acts of the male. State v. Miller, 191 Mo 587, 600. (b) There was no substantial evidence offered at the trial which warranted the jury in convicting defendant of rape, as charged in the information. State v. Remley, 237 S.W. 489; State v. Burgdorf, 53 Mo. 65; Champagne v. Hamey, 189 Mo. 726; State v. Goodale, 210 Mo. 290; State v. Tevis, 234 Mo. 284; State v. Donnington, 246 Mo. 356; State v. Paris, 259 Mo. 437; State v. McChesney, 185 S.W. 199; State v. Hollis, 284 Mo. 627; State v. Anderson, 284 Mo. 657; State v. Eslick, 216 S.W. 974; Burkett v. Gerth, 253 S.W. 199. (2) The court erred in overruling defendant's instruction in the nature of a demurrer to the evidence at the close of the whole case. Cases cited above. (3) The verdict was the result of bias, prejudice and passion on the part of the jurors, and is contrary to the weight of the evidence. (4) The court erred in refusing to grant a new trial to the defendant on account of improper argument and misconduct on the part of the prosecuting attorney in arguing the case to the jury. In this case in the argument to the jury the prosecuting attorney stated: "These men had murder in their hearts." This statement was made over defendant's objection, which was overruled by the court, to which ruling the defendant, by his counsel, duly excepted. State v. King, 174 Mo. 647; State v. Upton, 130 Mo.App. 316.
North T. Gentry, Attorney-General, and J. D. Purteet, Special Assistant Attorney-General, for respondent.
(1) The trial court properly overruled defendant's demurrers to the evidence interposed at the close of the State's case and at the close of all the evidence in the case. The evidence is substantially sufficient to show all the elements of the crime, to-wit, carnal knowledge, force and absence of consent. (a) Constructive force meets the requirements of the statute. Kelley's Crim. Law (3 Ed.) sec. 538, p. 472. (b) Consent obtained or induced by fear of personal violence is not consent. 1 Wharton Crim. Law (9 Ed.) sec. 557; 2 Bishop Crim. Law (7 Ed.) sec. 1125; State v. Cunningham, 100 Mo. 392; State v. Dusenberry, 112 Mo. 296; State v. Barbour, 234 Mo. 536. (c) Where the record contains substantial evidence of guilt of the crime as charged in the information, this court will not disturb the affirmative finding of the jury. State v. Ripey, 229 Mo. 666; State v. Espenschied, 212 Mo. 223; State v. Mann, 217 S.W. 69. (2) The argument of the prosecuting attorney to the jury contains no prejudicial remarks. Arguments to the jury are largely within the sound discretion of the trial judge. State v. Williams, 274 S.W. 436; State v. Tracy, 294 Mo. 390.
Davis, C. Higbee and Henwood, CC., dissent.
Tried to a jury on June 10, 1926, on the charge of raping Clara Pleimling on April 25, 1925, defendant was convicted and sentenced to a term of five years in the State penitentiary, from which an appeal was duly taken.
The evidence adduced on the part of the State warrants the following finding. Clara Pleimling, employed in the city of St. Louis, a young married woman, eighteen years of age, then separated from her husband, with an action for divorce pending, which was later granted, was escorted by one Krueger, a young single man, to a dance at Fenton, in St. Louis County. The conveyance used was an Overland coupe. Other couples accompanied them in machines or met them there. Returning home, on reaching Seibert Avenue and Morganford Road in St. Louis County, the couples stopped a few minutes for a word of farewell. The other couples then moved on, leaving Krueger and Miss Pleimling chatting. On the departure of the couples, Krueger lit and smoked a cigarette. After a lapse of ten to fifteen minutes, while the couple were seated in the coupe talking, defendant and one James H. Chance, jointly informed against with defendant, but as to whom a severance was granted, drove up in a Star coach, stopping immediately behind Krueger's coupe. The Star coach had two doors, with individual seats in front, it being necessary to raise and tip one of the seats forward to permit access to the rear seat. After stopping and ascertaining that the occupants of the coupe were a man and a woman, by prearrangement Chance ordered Krueger from the coupe at the point of a pistol, and defendant bade the woman alight and, taking her by the arm, ordered and pushed her towards and into the back seat of the coach. Krueger then protested, attempting to protect the girl, but was met with the threat, "Get going G -- D -- you, or I will blow your head off," upon which Krueger drove on. Chance then took the wheel and defendant occupied the rear seat next to the girl. Chance drove the car along Seibert Avenue until defendant decided to drive. After driving on, defendant stopped the coach on Seibert Avenue, in St. Louis County. They attempted to humor the girl, and Chance, who was beside her, demanded that she give in to them, saying, "You will never get home if you do not." At this time defendant asked Chance for the "gat," and Chance handed something to defendant, which she was unable to identify as a gun. During the occurrence Clara was crying and she stated she was very weak. Chance in trying to humor her told her it was no use to cry, but if she would give in to them she would be taken home. After stopping they pointed a gun at her once, but she could not remember whether or not it was often. Chance tore her bloomers and had sexual intercourse with her, defendant in the meantime standing near the car with a gun. After Chance had accomplished his purpose, defendant boarded the coach and had sexual intercourse with her in the same manner. They then drove her to Risch's Grove, four or five blocks from her home, put her out, and drove away. The evidence shows that the culprits first accosted Krueger and Clara about two-thirty A. M., on the roadside, and that they delivered her at Risch's Grove about five-thirty A. M. In the interim, Krueger reported the kidnapping to Constable Knight, and upon Clara's alighting from defendant's car at Risch's Grove, she immediately hied to the home of Constable Knight, reporting the assault and rape on her to him. She found Krueger waiting for her there. Defendant was arrested at six-thirty A. M. the same morning at his home.
Inasmuch as the evidence on both the part of the State and defendant shows that neither Clara and Krueger on the one hand nor defendant and Chance on the other had ever known or heard of each other previously, it may satisfy the curious with regard to the promptness of the arrest to state that the preliminary examination shows that Clara unobserved placed herself on alighting in a position to read the number of the state license on the coach, which she communicated to the constable.
On cross-examination Clara stated in substance that no houses were observed at the place of assault. The night was dark and damp, resulting in her inability to identify defendant. At the time of the rape she was sitting on the front edge of the seat with the upper portion of her body reclining towards the back of the seat, which was about a foot from the floor. One of her hands was grasping the seat, the other was against his shoulder, pushing him away. The following questions were asked and answers returned.
Chance, testifying for the State, corroborated the prosecutrix as to the assault in the first instance with the pistol, as to the kidnapping of the prosecutrix, as to no previous acquaintance with her, and as to the sexual intercourse both he and defendant had with her. His further testimony was to the effect that she not only made no outcry, but that she consented to the intercourse provided they would take her home. However, he stated she was sobbing during the abduction.
Defendant, on the stand, admitted that he and Chance abducted the prosecutrix, taking her from her escort as related by the State's witnesses, and that he had sexual intercourse with her, but denied that he forced prosecutrix to yield to him, and asserted that it occurred with her consent. Such other facts as are pertinent, if any, will be related in the issues discussed.
I. It is the contention that the court erred in refusing to sustain instructions in the nature of demurrers to the evidence to acquit defendant. As the defense refused to stand on the instruction offered at the close of the State's case, but went forward introducing evidence, we must consider all the evidence in reviewing the question. The abduction of the prosecuting witness and defendant's sexual intercourse with her may be eliminated from further notice, as both acts were admitted by defendant.
Defendant's position that the cause was not submissible to the jury is based on the predicate that she made no outcry, offered no resistance to the...
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