The State v. Marcks
| Citation | 41 S.W. 973,140 Mo. 656 |
| Parties | The State v. Marcks, Appellant |
| Decision Date | 06 July 1897 |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Louis Criminal Court.
Affirmed.
Martin & Bass for appellant.
(1) The proper course to pursue is not to admit evidence, the competency and relevancy of which is not apparent until the competency or relevancy is disclosed by the subsequent evidence. State v. Thomas, 99 Mo. 235. (2) That on the eighth day of May, five weeks after the alleged assault the defendant was suffering from gonorrhea, was not such a fact, either by itself or in connection with the fact that the prosecuting witness was then also suffering from the same disorder, as proved or rendered probable the existence or non-existence of the fact that defendant had raped or had sexual intercourse with her. It was a circumstance too remote; not part of the res gestae; it was a collateral fact which afforded no reasonable presumption or inference as to the principal fact in dispute. Nor was this testimony admissible upon the theory that it corroborated the prosecuting witness in her statement "that the defendant had had sexual intercouse with her." State v Houx, 109 Mo. 654; State v. Thomas, 78 Mo. 327; State v. Grant, 79 Mo. 113; State v Cooper, 71 Mo. 436; State v. Scholl, 130 Mo. 396; State v. Young, 119 Mo. 495; State v. Primm, 98 Mo. 368; State v. Jaeger, 66 Mo. 173; State v. Burgdorf, 53 Mo. 65. (3) 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, the evidence will be insufficient to support a conviction. State v. Patrick, 107 Mo. 147; State v. Mathews, 19 Neb. 330; State v. Primm, 98 Mo. 368; 2 Bish. New Crim. Proc., sec. 969, and cases cited; State v. Witten, 100 Mo. 525; State v. Cunningham, 100 Mo. 382; State v. Wilson, 91 Mo. 410; Barney v. The People, 22 Ill. 160. (4) To establish the crime of rape it must be proved beyond a reasonable doubt that there was actual resistance. A passive policy will not do. State v. Burgdorf, 53 Mo. 65; State v. Patrick, 107 Mo. 147. (5) The degree of credibility in a rape case to be attached to testimony of the prosecuting witness, and as to whether there are contradictions therein, are to be determined by the jury under appropriate instructions. State v. Jones, 61 Mo. 232; State v. Witten, 100 Mo. 525; Reynolds v. State, 27 Neb. 90; Conners v. State, 47 Wis. 523.
R. F. Walker, Attorney-General, and C. O. Bishop for the State.
(1) It has been settled in this State that a conviction of rape may be had upon the uncorroborated testimony of the prosecutrix. State v. Dusenberry, 112 Mo. 292. (2) There was no exception saved to the action of the court in admitting the evidence as to the appellant's venereal disorder, and appellant will not be heard to complain here. State v. McCollum, 119 Mo. 469, overruling State v. O'Connor, 65 Mo. 374. (3) The testimony of the superintendent of the city hospital that he had made a physical examination of the prosecutrix a week or ten days after the alleged assault and found her suffering from a virulent form of venereal disease, was admissible in corroboration of the testimony of the prosecutrix that appellant had carnally known her, in connection with the testimony that he was suffering at the same time with the same disease. State v. Sanford, 124 Mo. 484.
Gantt, J. Barclay, C. J., and Macfarlane, Robinson and Brace, JJ., concur. Burgess, J., concurs in paragraph 2 but dissents from the view expressed in the first paragraph, and holds the evidence insufficient to sustain a conviction. Sherwood, J., dissents, and expresses his views in a separate opinion.
In Banc.
-- The defendant was indicted at the May term, 1895, of the St. Louis Criminal Court, for rape alleged to have been committed by him upon one Nellie Berger, a female over the age of fourteen years, in the city of St. Louis on the first day of April, 1895. At the July term, 1895, he was duly arraigned and entered his plea of not guilty, was tried and convicted, and his punishment assessed at five years in the penitentiary. From sentence on said verdict he appeals.
The testimony developed that defendant was a brother-in-law of the prosecutrix, having married her sister on the twenty-sixth of February, 1895. He carried on a business of making "shop coats." The prosecutrix not only worked for him, but often visited his wife, her sister. On the morning of April 1, 1895, she went to his house, and when she arrived defendant and his wife had not yet arisen. Her sister sent her on an errand, and while she was absent defendant and his wife arose, dressed and ate breakfast. There were three rooms in the apartments occupied by defendant -- two rooms, a hall, and the kitchen across the hall. When prosecutrix returned that morning, she sat down on the bed in the kitchen with defendant and his wife, and they chatted and laughed awhile, and then defendant sent his wife into the shop room across the hall to work. After her departure he began playing with the prosecutrix, wrestling with her in a joking way, as they often did. While sixteen years old, she was still quite small and wore short dresses. Her station in life appears to have been very humble. She seems to have permitted his familiarities as if he were her brother. She testified that while they were thus playing together on the morning mentioned, he seized her so unexpectedly that before she could realize her position he had her completely in his power, and by force had sexual connection with her. She testified that she resisted his assault to her full ability, with all the strength she had, and never at any time consented to the intercourse. She testified she holloed. She says she did not tell her sister when she came into the room soon after the occurrence; that her sister had only been married to defendant a few weeks, and she hated to tell her. She told her mother about a week after the occurrence.
I. The sufficiency of the evidence to sustain a conviction for rape is challenged. We think there was sufficient direct and positive evidence to justify a conviction of rape in this case. Taking into account the age of the girl; that she was still wearing short dresses; the relationship of defendant; the familiarities permitted on account of that relation; the sudden attack and advantage taken of the girl; her resistance and cries, and her positive evidence that she never at any time consented to the intercourse, we think the criminal court properly submitted the facts to the jury.
It is urged that she is not corroborated; that her own evidence destroys the charge of rape. But is she without corroboration? Without knowing what the defendant would testify, she went on the stand and testified (carefully and candidly it seems to us) to the time when and place where the outrage was committed, and named the defendant as her despoiler. In all these essential particulars she was fully corroborated by the defendant himself, and contradicted by him only as to the force in accomplishing the penetration. She is also corroborated by the loathsome disease which he imparted to her.
Is he to go acquit because she made no immediate complaint to her sister, or her mother, or because she gives an unsatisfactory reason for her failure to do so? It is true there is no evidence of threats of violence if she told of the outrage, but it is not to be forgotten that she was young and ignorant, and might well have hesitated at charging her sister's husband with such a crime to that sister. But let it be admitted that her delay was unreasonable, measured by ordinary experience, and that it is a circumstance which excites suspicion of her veracity and tends to discredit her, the question arises, does it do more than this? Does it raise such a conclusive presumption against her evidence that an appellate court is justified in ignoring the verdict of a jury, and the refusal of the criminal court to set aside that verdict on that ground alone? On this point we think the great weight of authority is to the contrary. In Higgins v. People, 58 N.Y. 377, Chief Justice Church, for the court, said:
In State v. Peter, 8 Jones' Law (N. C.), 21, Chief Justice Pearson, for the court, discussing a charge in which the fact that the woman had not made known or complained of the outrage for two weeks was presented to the jury as a circumstance affecting her credibility, said: ...
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