The State v. Forshee
| Decision Date | 20 November 1906 |
| Parties | THE STATE v. FORSHEE, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Francois Circuit Court. -- Hon. Robt. A. Anthony Judge.
Reversed and remanded.
B. H Boyer and J. N. Burks for appellant.
(1) The prosecutrix in a trial for rape must be corroborated, and where her testimony as to the perpetration of the alleged offense is explicitly contradicted by the defendant, thus creating equipoise of oath against oath, the evidence will be insufficient to support a conviction. State v Patrick, 107 Mo. 147; State v. Dusenberry, 112 Mo. 277. (2) Even had the State proved a conspiracy between Willis and the defendant to ravish the prosecutrix, yet the alleged statements were made after the accomplishment of the alleged crime, and could not be admitted in evidence against defendant unless made in his presence and hearing. State v. Ross, 29 Mo. 32; State v. Burnham, 82 Mo. 67; State v. Fredericks, 85 Mo. 145; State v. Reed, 85 Mo. 194; State v. McGraw, 87 Mo. 161; State v. Minton, 116 Mo. 605. (3) The alleged statements of Willis admitted by the court as evidence against this defendant, were made at a subsequent time, were merely narrative of past events and were absolutely inadmissible for any purpose. State v. Melrose, 98 Mo. 594; State v. Hilderbrand, 105 Mo. 318; State v. Martin, 124 Mo. 514; State v. Minton, 116 Mo. 605; State v. Brennan, 164 Mo. 509; State v. Harris, 150 Mo. 61.
Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
(1) Counsel are right in saying that statements made by the co-conspirator Willis, made in the absence of the defendant, and made after the conspiracy had ended, were not admissible in evidence against the defendant. In this instance, however, the statements of Willis, made to the witness Rose at the Blue Goose saloon, were admissible for two reasons: first, because the witness Rose testified that defendant and Willis were then together; and second, because Willis was a witness for defendant, and denied making such statements to Rose. State v. Forsha, 190 Mo. 325. (2) The statements of defendant's witness Willis, even though they related to past events, did not make them inadmissible for the purpose of contradiction. 2 Wigmore on Evid., sec. 1005. (3) Although the statements of Willis were not a part of the res gestae, they were admissible for the purpose of showing that Willis had not testified truthfully in one matter which was closely connected with the crime charged and in relation thereto. State v. Tolbert, 73 Mo. 370; State v. Hughes, 71 Mo. 633. (4) The evidence is sufficient to justify the verdict. Pleasant v. State, 13 Ark. 377; Rice v. State, 35 Fla. 239; 2 Bish. New Crim. Law, sec. 1119; Kelley's Crim. Law, sec. 540; Barnett v. State, 83 Ala. 45; Block v. State, 119 Ga. 751; State v. Napper, 141 Mo. 406; State v. Berzaman, 10 Wash. 278; State v. Dilts, 90 S.W. 786; State v. Urspruch, 90 S.W. 451; State v. Marcks, 140 Mo. 656.
On the 14th of April, 1904, the prosecuting attorney of St. Francois county began this prosecution by filing an information, duly verified, in the office of the clerk of the circuit court of said county, wherein he charged the defendant with rape on Emily Cowan, in said county, on the 6th day of December, 1903.
The defendant was arrested and arraigned, and pleaded not guilty. On the 10th of August, 1904, he was put upon his trial and convicted and sentenced to the penitentiary. After unsuccessful motions for a new trial and in arrest of judgment, he appealed to this court.
The information is in proper form and we discover no error in the formal proceedings. The errors assigned relate to the alleged improper admission of testimony and to the alleged insufficiency of the evidence to sustain the verdict.
I. The first contention for defendant is that the circuit court erred in admitting in evidence the statements of Willis, made in the presence of defendant, to the witness Rose at the Blue Goose saloon, after the perpetration of the alleged offense. It is admitted by the State that statements made by one of two or more alleged conspirators after the commission of the offense are not competent.
It is the settled law of this State that declarations of a co-conspirator, made after the common criminal enterprise has been accomplished and merely narrative of past occurrences, are inadmissible against another conspirator. To be competent they must be either acts in themselves or accompany and explain acts done in pursuance of the concerted criminal purpose, during the pendency of the common criminal enterprise. [State v. Melrose, 98 Mo. 594, 12 S.W. 250; State v. Hilderbrand, 105 Mo. 318, 16 S.W. 948; State v. Minton, 116 Mo. l. c. 605, 22 S.W. 808; State v. Brennan, 164 Mo. l. c. 487, 65 S.W. 325.]
But it is insisted by counsel for the State that the evidence of the witness Rose was admissible for the reasons, first, that the alleged statements of Willis, the co-conspirator, were made when defendant was present; and, secondly, in impeachment of Willis, who was a witness for defendant.
We have carefully noted all the testimony of the witness Rose on this point. He testified that about 11 o'clock that night defendant and Willis came to the saloon and while there Willis alluded to his having had intercourse with some old woman. It is perfectly plain that if any reliance whatever is to be placed upon the testimony of Mrs. Cowan and her children, the occasion to which Rose alludes was several hours after the alleged rape and when the common enterprise had ended. The statement of Willis on the theory that...
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