The State v. Dilts
| Decision Date | 12 December 1905 |
| Citation | 90 S.W. 782,191 Mo. 665 |
| Parties | THE STATE v. GEORGE DILTS, Appellant |
| Court | Missouri Supreme Court |
Appeal from Monroe Circuit Court. -- Hon. David H. Eby, Judge.
Affirmed.
J. H Whitecotton, J. D. Dale, T. T. Rodes, W. W. Barnes and T. P Bashaw for appellant.
(1) It was error to permit Mrs. Reed to testify in rebuttal to matters she had gone over in chief. (2) Instruction 4, given by the court of its own motion, is erroneous, in that, on account of the arrangement of its clauses it gives undue prominence and significance to the fact that defendant was testifying in his own behalf. State v. Boyd, 178 Mo 14. (3) Instruction 5 1/2, given by the court of its own motion, does not employ the words in universal use in stating the elements of the crime of rape. (4) Defendant's motion for a new trial should have been sustained for the reason, among others, that the verdict is against the evidence in the case, and, upon the whole case, was the result of the prejudice and bias of the jury.
Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
(1) Instruction 4 told the jury that the defendant was a competent witness, but that his interest in the case could be taken into consideration, etc. State v. Knock, 142 Mo. 523. (2) Instruction 5 1/2 properly defined the crime of rape and gave the jury the test by which they were to determine whether such a crime had been committed. State v. Boyd, 178 Mo. 10. (3) While some reference was made by Mrs. Reed to conversations with the witnesses in her evidence in chief, yet the State was entitled to have this witness testify in rebuttal that she made no statements to defendant's witnesses of the nature as testified to by said witnesses. Besides, the order of testimony is a matter that must necessarily be left largely to the judgment of the trial court; and, in this instance, there was no abuse of that discretion. State v. Murphy, 118 Mo. 15; State v. Buchler, 103 Mo. 203. (4) The evidence was sufficient to justify the jury in convicting the defendant of the crime charged. State v. Wilcox, 111 Mo. 575; State v. DeWitt, 152 Mo. 76; State v. Williams, 149 Mo. 496; State v. Williams, 186 Mo. 128.
At the December term, 1903, of the circuit court of Monroe county, Missouri, the prosecuting attorney of said county filed the following amended information:
Prosecuting Attorney.
"James P. Boyd, prosecuting attorney of and within and for the county of Monroe and State of Missouri, as aforesaid, being duly sworn, on his oath states that the allegations, matters and facts in the foregoing information are true to the best of his knowledge, information and belief.
James P. Boyd.
At the April term, 1904, of said court, the defendant was put upon his trial and convicted of rape and his punishment assessed at five years' imprisonment in the penitentiary. After unsuccessful motions for a new trial and in arrest of judgment, the defendant appealed to this court.
The testimony on behalf of the State tended to prove that the prosecutrix, Miss Whittaker, was twenty-one years of age and was living with and in the employ of Mr. and Mrs. Zeno Reed, near Victor, in Monroe county, Missouri, in the capacity of a domestic, assisting Mrs. Reed in the housework. Mr. Reed's home was about five miles from that of the parents of the prosecutrix. The prosecutrix and the defendant, George Dilts, had known each other for about three years and for some time prior to the alleged offense he had been paying her marked attentions. The father had objected to these attentions and forbade them. On the afternoon of the day of the alleged rape the prosecutrix accompanied the defendant in a one-horse buggy from the home of her employer, Mr. Reed, to Mr. Geery's, about six miles distant. It appears that they left Mr. Reed's house about seven o'clock and spent the evening at Mr. Geery's and returned to Reed's that night. It was on their return trip that night that the crime is charged to have been committed. The testimony tends to show that they left Geery's about ten o'clock. According to the evidence of the prosecutrix, the defendant insisted upon her taking a drink of whiskey during the drive home; but she refused to do so, and he tried to force her to do so, and in so doing spilled some of the whiskey on her clothing. The evidence tended to show that the prosecutrix at this same time was on friendly terms with a young man by the name of Armstrong. During this return trip the defendant began abusing and cursing Armstrong and told her if he ever heard of her going with Armstrong he would kill her. The testimony tends to show further that along the road from Geery's to Reed's there were some fourteen houses. Having refused to drink with him when he first asked her, they drove on until they reached Mr. Scobee's, when he again asked her to drink and she again refused, and he said he guessed he would make her drink and put his hands in his hip pocket. When they reached the gate in front of Mr. Ketterly's house, he again stopped and asked her to drink and she refused, but he took a drink, and they drove on. She testified that she then begged him to take her home, and they drove on in a slow walk until they reached Mr. Pugh's place, where he stopped the buggy and tried to force her to drink from the bottle. The defendant denies having any whisky at all with him. After defendant had threatened prosecutrix about going with Armstrong, according to her evidence, he attempted to raise her clothes and take liberties with her person, but she prevented him from doing so. He then requested her to have intercourse with him. When they reached a point near the farm of William Francis the defendant attempted to and finally succeeded in pulling her out of the buggy. In the scuffle her arms were bruised and hurt and her clothing torn and her dress badly soiled. She testified that she resisted defendant all she could and screamed at the top of her voice, but the defendant grabbed her hands and succeeded in having sexual intercourse with her. Prosecutrix then attempted to walk home but was forced by defendant to get into the buggy and ride to Mr. Reed's where they separated. Prior to separating defendant told her he would kill her is she ever told what he had done. The prosecutrix reached the home of Mr. Reed about two o'clock in the morning and retired to her room and tried to sleep. About five o'clock that morning Mrs. Reed came to her room and found prosecutrix greatly distressed, crying and almost hysterical. Prosecutrix then made complaint to Mrs. Reed that defendant had raped her during their drive from Geery's and showed Mrs. Reed her underclothing which was torn and bloody. Word was sent that day to the father of the prosecutrix, who lived some five miles distant, and he drove to Paris and reported the facts to the prosecuting attorney, and the defendant was arrested that evening. The day after this alleged assault a lady's comb was found near a tree in front of the Francis farm and was identified as belonging to the prosecutrix. The prosecutrix's mother testified to the smell of whisky on her daughter's dress the day after the commission of the alleged crime, and also to the torn and soiled condition of her underclothing. Three physicians made an examination of the prosecutrix on August 14, 1903, and two of them testified they found bruised places and contusions on her limbs, and her private parts bloody, inflamed and tender. They testified further that there had been a penetration of recent occurrence and bloody water was exuding at the time of their examination.
On the part of the defendant, Mr. John Hurd testified that he passed defendant and the prosecutrix that night near the farm of Mr Pugh -- he was going east while they were headed west, and he rode to one side to let them pass. He described their position in the buggy when he first saw them as "Laying down, as near as two people could be in a buggy, the buggy top was back, laid down; they were lying back in the buggy;" that the defendant had his left arm around prosecutrix's neck, but he did not notice what he was doing with his other hand; that as they passed him the defendant raised up and sat upon the seat but she lay still until they had passed him some fifteen feet, when she raised up and sat by the defendant and appeared to speak to him but the witness did not hear what she said. The defendant testified that she asked him if he thought the man recognized them. There was evidence on the part of the defendant that the house of Mr. Francis was about seventy-five yards from the road and...
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State v. Warren
... ... act of intercourse took place. 10 Cyc. Ev., p. 585, sec. 2 ... (2) The information is sufficient, valid and properly charges ... the offense. State v. Goodale, 210 Mo. 275; ... State v. Burries, 126 Mo. 565; State v ... Dilts, 191 Mo. 665. (3) The authorities hold to the ... rule: First. That if she was incapable of expressing consent ... or dissent, or of exercising any judgment upon the matter ... from imbecility of mind or defect of understanding, then ... appellant would be guilty. State v. Williams, 149 ... ...