The State v. Egner

• Decision Date: 23 June 1927
• Docket Number: 27363
• Citation: 296 S.W. 145,317 Mo. 457
• Parties: The State v. Carl Egner, Appellant
• Court: Missouri Supreme Court

296 S.W. 145

317 Mo. 457

The State v. Carl Egner, Appellant

No. 27363

Supreme Court of Missouri

June 23, 1927

Appeal from Jackson Circuit Court; Hon. Charles B. Pence Judge.

Reversed and remanded.

North T. Gentry, Attorney-General, and J. D. Purteet, Special Assistant Attorney-General, for respondent.

(1) Requested instructions which erroneously declare the law have no place in a criminal trial. The substance of the requested and refused instructions was to the effect that if the jury believed from the evidence that the prosecutrix had an opportunity to make complaint of her ravishment immediately after the alleged rape, and did not avail herself of such opportunity, then such failure should be taken as inconsistent with appellant's guilt and render the charge of rape against him as being improbable. The facts and circumstances of a given case of rape determine the necessity of an instruction on "failure to complain." State v. Wilson, 91 Mo. 410; State v Witten, 100 Mo. 525; State v. Goodale, 210 Mo 275. (2) It is not reversible error to refuse instructions, the subject-matter of which has been covered in given instructions. The subject-matter of requested instructions lettered A and B was covered in the court's instructions numbered 1 and 2. State v. Bigley, 247 S.W. 171.

Davis, C. Higbee and Henwood, CC., concur.

OPINION

DAVIS

In an information filed in the Circuit Court of Jackson County, defendant, Cecil Cooley and wife were jointly charged with ravishing, on August 14, 1924, Catherine Ottley. Upon a severance being granted to Cecil and Welma Cooley, the case proceeded to trial against defendant, who was convicted and sentenced to the penitentiary for a term of thirty years. An appeal was later taken from the judgment entered thereon.

The evidence on the part of the State justifies the following finding. The prosecutrix, sixteen years of age at the time of the occurrence, lived with her parents, two small brothers and a sister in Kansas City, and was employed at a cloak concern, in charge of return mail, becoming acquainted, by virtue of her employment, with one Lucille Swiggart. The two girls planned an evening's outing at Electric Park Lucille agreeing to call for Catherine at half past seven, but failing to do, Catherine retired at eight-thirty. Fifteen minutes later Lucille arrived, Catherine arising, dressing and accompanying her to a waiting car, where for the first time she met defendant, one Arthur Muehle and Mr. and Mrs. Cooley. Catherine entered the car and was driven to Ma Ziegler's home-brew resort in the East Bottoms of Kansas City, where all partook of home-made beer, Catherine drinking one pint bottle according to her testimony, but three pint bottles as the others said. On her way to Ma Ziegler's, Catherine sat on Arthur Muehle's lap. She lost recollection of events at Ziegler's shortly after taking the first bottle of beer, becoming dazed, and stating she was unconscious of what transpired until reaching a lonely place beyond Sheffield. She failed to observe habitations in the vicinity. At this time Lucille was out of the car, a block or less away, nauseated from the beer, vomiting, accompanied by Arthur Muehle, who was holding her head. Mr. and Mrs. Cooley, twenty and nineteen years of age, respectively, occupied the front seat of the car, with defendant and Catherine on the rear seat.

Defendant, at this time was attempting indecent personal liberties, while Catherine was attempting to fight him off. She then stated she fought until she could fight no longer, and that defendant, with the help of Mrs. Cooley, who held her arms, and Mr. Cooley, who held her legs, pulled up her clothes and had sexual intercourse with her, while lying down on the back seat of the car, which was a seven-passenger Packard touring car, according to defendant's evidence. Catherine stated she was screaming as hard as she could and crying, crying all the way home, although she stated immediately thereafter that she fell asleep on the way home. She did not communicate with her parents that night or the next morning, but went to her employment as usual, working the entire day. Lucille failed to go to work that day, for her marriage with defendant took place in Kansas. Seeking Lucille at her home that evening and not finding her there, Catherine related the occurrence to Lucille's sister and brother-in-law, who suggested the summoning of Catherine's father. Consultations resulted in the arrest of defendant, Mr. and Mrs. Cooley and Arthur Muehle, the information as to Muehle being later dismissed.

Arthur Muehle, for the State, corroborated Catherine in much of her story, but stated that he was about a block away during the alleged intercourse, that he failed to hear an outcry emanating from the car, that the prosecutrix said nothing about an assault, that she was not unconscious during the drive,...