The State v. Edie
| Decision Date | 07 February 1899 |
| Citation | 49 S.W. 563,147 Mo. 535 |
| Parties | The State v. Edie, Appellant |
| Court | Missouri Supreme Court |
Appeal from Chariton Circuit Court. -- Hon. W. S. Stockwell, Special Judge.
Affirmed.
C. C Hammond and Crawley & Son for appellant.
(1) Defendant's seventh instruction should have been given. In a case of this character, where the sympathies and prejudices of the jury are naturally on the side of the prosecution, the court should declare in clear and unmistakable terms that the accused is not bound to prove his innocence. No other instruction embodying this proposition was given. The refusal of this instruction was, therefore reversible error. (2) The remarks of the prosecuting attorney in his closing speech to the jury were highly prejudicial and were wholly outside the record. The failure of the court to rebuke them amounted to a judicial approval of them. State v. Moxley, 102 Mo. 374; McDonald v Cash, 45 Mo.App. 66. (3) The testimony of the prosecutrix is incredible in itself, and, being wholly uncorroborated, will not sustain the conviction. State v. Patrick, 107 Mo. 147; State v. Marcks, 140 Mo. 675.
R. G. Mitchell also for appellant.
(1) The definition of reasonable doubt in the State's sixth instruction is not full and correct. It is the duty of court unasked to properly define reasonable doubt. State v. Clark, 47 S.W. 886. The instruction is manifestly erroneous in that it deprived the defendant of the benefit of any reasonable doubt as to his guilt that might have arisen from the insufficiency of the evidence. State v. Blue, 136 Mo. 41; State v. Wells, 111 Mo. 537; State v. Patrick, 107 Mo. 147, 156. (2) In his closing argument it is admitted the prosecuting attorney traveled outside the record. When defendant objected the court failed to rebuke the prosecuting attorney and in effect the weight of the court's approval was added to counsel's error. It will not do to speculate on the influence of argument on matters not in the record and the error is the more grave in closing argument. Tucker v. Henniker, 41 N.H. 371; Cleveland Paper Co. v. Banks, 15 Neb. 20; Brown v. Railroad, 66 Mo. 595; Marble v. Walters, 19 Mo.App. 134; McAdory v. State, 62 Ala. 154; Wilson v. United States, 149 U.S. 60; 1 Thompson on Trials, sec. 958. The reference in closing argument to defendant's objection to witnesses testifying, could refer to nothing except the exclusion of the testimony of witness George McHargue. No other witness was objected to or excluded. 1 Thompson on Trials, sec. 969; Bank v. Nichols, 43 Mo.App. 385; Marble v. Walters, 19 Mo.App. 134.
Edward C. Crow, Attorney-General and Sam B. Jeffries, Assistant Attorney-General, for the State.
(1) While defendant's seventh instruction may embody a correct principle of law, yet it was altogether unnecessary in view of the other instructions given in the case, and of right was refused. An instruction is rightfully refused when the same principle is contained in another given. State v. Jones, 78 Mo. 278; State v. Sayers, 58 Mo. 585; State v. Anderson, 89 Mo. 312; State v. Mathes, 90 Mo. 571; State v. Jackson, 96 Mo. 200; State v. Thompson, 83 Mo. 257; State v. Elliott, 98 Mo. 150; State v. Thomas, 99 Mo. 235; State v. Gamble, 119 Mo. 427; State v. Woods, 97 Mo. 31; State v. Johnson, 76 Mo. 122. (2) When the instructions as a whole, declare the law, omissions in the way of particular instructions will not constitute grounds for reversal. State v. Edwards, 71 Mo. 312; State v. Hatfield, 72 Mo. 518; State v. Mathews, 98 Mo. 125; State v. McNamara, 100 Mo. 100; State v. Minton, 116 Mo. 605. (3) The testimony shows abundant corroboration of the statements made by the prosecutrix, and defendant's objection in that respect must fall. (4) As to the remarks of the prosecuting attorney which meet with defendant's disapproval, we are unable to find anything in relation thereto that would blind the jury or tend to prejudice their minds against him.
At the October term, 1895, of the Chariton circuit court the defendant was indicted for an assault with intent to rape. He was duly arraigned and pleaded not guilty. The cause was continued to the April term, 1896, and again at the April term was continued to the October term, 1896.
On October 28, 1896, it was tried and defendant found guilty. Thereupon a motion for a new trial was filed, the only ground thereof appearing in this record, being the misconduct of one of the jury in qualifying after having expressed an opinion as to the guilt or innocence of defendant. The court sustained this motion for a new trial on the fourth of December, 1897.
At the April term, 1898, Judge W. W. Rucker, the regular judge, being absent, an election was held for a special judge to preside at said term and Hon. W. S. Stockwell was duly elected and took and subscribed the oath required. At this term the defendant was again tried and convicted and sentenced to the penitentiary for two years. It is from this conviction he appeals.
This argument requires a summary of the testimony. The prosecutrix was a widow with one child, a daughter about three years old at the date of the alleged assault. She lived about five miles from Salisbury in Chariton county, on a farm. Her family consisted of herself and little daughter, a brother Enoch Skinner, a young man about twenty years old, and a cousin, a man by the name of George McHargue who has been adjudged insane. The defendant lived about three quarters of a mile distant on another farm. On the morning of July 25, 1895, Enoch Skinner, brother of the prosecutrix, left home on business. After he left defendant stopped at her house and inquired if Enoch had gone to town, and was told that he had. Whereupon defendant left. During the afternoon the prosecutrix and her daughter and George McHargue went to Salisbury in a buggy to do some trading. Prosecutrix saw defendant in one of the stores in Salisbury during the afternoon. Having made her purchases, among which was a broom, she started home and after leaving the town discovered she had left her broom. They turned round and returned to Salisbury. As they did so they met defendant going toward his home, driving rapidly.
Having obtained the broom the prosecutrix and her cousin McHargue resumed their journey home. On the way they overtook defendant, who was then driving slowly. He gave the road and they passed him and reached home. After her arrival at home, McHargue took the team to the barn and prosecutrix changed the little girl's clothing and the child followed McHargue. The prosecutrix then went up stairs to change her own clothing. Having removed her dress she heard someone coming up the stairsteps whom she took to be her cousin McHargue. She stepped to the head of the steps, opened the door and looked out and saw defendant coming up the steps.
She told him to go down, that she would be down in a few minutes; but he kept coming up, whereupon she shut the door, and braced herself against it, as the lock was broken. Defendant pushed the door open and prosecutrix seized her dress and began putting it on, and told defendant if he didn't let her go down stairs she would call George McHargue. He said,
Then she threatened to jump out of the window. Defendant then produced a bottle of wine and told her she had to drink some. She told him she didn't want any. She then ran to the door again, but he beat her there and in her effort to get him away from the door he threw her against the wall. He then caught her and threw her on the bed. He got on her and held her down with his hands on her shoulders and his knees on her body. Thereupon she screamed as loud as she could and he threw the bed covers over her head, and held them there. Defendant then got off her body and pulled up her clothing and put his hands on her privates. She gave a whirl and halloed for George again, and McHargue hearing her, came up the steps.
When McHargue reached the top of the steps, defendant loosed the prosecutrix and McHargue asked him what he was doing there, whereupon defendant knocked him down. Whereupon defendant left the house, saying to the prosecutrix that if she tried to do anything he would tell a few things he had heard.
J. W. Owens testified that he lived about two hundred yards from the home of prosecutrix. On the afternoon of July 25, 1895, he was at his home. He heard a terrible stamping and tramping over at the house of prosecutrix, like somebody was aiming to tear the house down. Heard George McHargue swearing pretty loud. He went up to see what the trouble was.
As he went up to the house he saw Bob Edie, the defendant, leaving the house of prosecutrix. He heard something like a scuffle. When he got there the prosecutrix was in the room working around. He asked her what the trouble was, and she said the baby fell out of the buggy and McHargue got mad about it.
The prosecutrix testified that the first person she saw after the assault was Bill Owens. He said to her, "Why, George is mad ain't he?" and she answered "Yes." She said she hated to tell him what was the matter until her brother Enoch came home. She thinks this was about six o'clock. She sat up that night until her brother came home, and told him about it. He said they could not do anything until next day.
She testified that she didn't go to any of the neighbors that night because she was hurt. As soon as she felt able she went to her sister's. Enoch Skinner testified that his sister made complaint to him that night upon his return home...
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