The State v. Miller
| Decision Date | 12 December 1905 |
| Parties | THE STATE v. J. H. MILLER, Appellant |
| Court | Missouri Supreme Court |
Appeal from Saline Criminal Court. -- Hon. John A. Rich, Judge.
Affirmed.
J. F Barbee, Frank Rigney and R. M. Reynolds for appellant.
(1) There can be no conspiracy between a husband and wife to commit a crime. State v. Miller, 162 Mo. 253. (2) If there could be such a thing at law as a conspiracy between a husband and wife to commit a crime, still, the conspiracy is a matter first to be shown before the acts, declarations or statements of the alleged co-conspirator can be given in evidence. State v. Kennedy, 177 Mo. 131; State v. Walker, 98 Mo. 95. (3) In this case there was no conspiracy shown to exist, in fact, for any purpose, and it was error to admit the conversations, conduct and statements of defendant's wife. (4) While it may be the province of the jury to say whether or not in fact a conspiracy existed yet they are not to be permitted to do so in the absence of competent and sufficient evidence therefor; and it is the duty of the court to see that there is sufficient evidence for such a finding before evidence is heard touching the acts of the alleged co-conspirator, or submits the same to the jury. State v. Kennedy, supra. (5) Defendant's peremptory instruction in the nature of a demurrer at the close of the State's case, requiring a verdict of not guilty, should have been given. The evidence did not disclose a rape. All the ear-marks by which such an offense is distinguished were absent, and all the facts given in evidence negative and repel any other idea or conclusion than that all that was done by the defendant and prosecutrix was by the consent of prosecutrix. State v. Burgdorf, 53 Mo. 65; State v. Patrick, 107 Mo. 147; State v. Huff, 161 Mo 459; State v. Primm, 98 Mo. 368; State v. Prendible, 165 Mo. 329.
Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
(1) The indictment was sufficient in form and substance, and similar ones have been approved by this court. State v. Armstrong, 167 Mo. 262; State v. Harris, 150 Mo. 50; State v. Warner, 74 Mo. 84; State v. Burries, 126 Mo. 565; R.S. 1899, sec. 1837. (2) Defendant's motion to quash the indictment because of his inability to challenge the grand jurors -- he being in jail -- was properly overruled. This very point has been recently passed on by this court, and adversely to defendant's claim. State v. Taylor, 171 Mo. 475. (3) The order of the introduction of statements of one of the conspirators is within the discretion of the trial court; provided, of course, that there is evidence tending to show that a conspiracy existed, as there was in this case. State v. Walker, 98 Mo. 103; State v. True Nell, 79 Mo.App. 246. The evidence tending to show such a conspiracy was ample. (4) The rule does not require that the woman shall do more than her age, strength and the attendant circumstances make it reasonable for her to do in order to manifest the opposition. Eberhart v. State, 134 Ind. 655; State v. Cross, 12 Iowa 69; Barker v. State, 40 Fla. 187; Vasser v. State, 55 Ala. 265; 2 Bishop on Crim. Law, 939; State v. Daugherty, 63 Kan. 480. (5) Defendant's instruction 6 was properly refused. This court has held, and the same rule applies in other States, that a failure to make complaint is a circumstance from which the jury may infer that no rape was committed; but that the weight of that circumstance is a question for the jury. State v. Witten, 100 Mo. 529; State v. Hammond, 77 Mo. 159; 2 Wigmore on Evidence, p. 1335; 1 Greenl. on Evidence, sec. 469c; 3 Chity's Crim. Law, 812; State v. Gyrne, 47 Conn. 467; Turner v. People, 33 Mich. 383; Hill v. State, 5 Lea (Tenn.) 732; State v. Knapp, 45 N.H. 155; State v. Niles, 47 Vt. 87; Polson v. State, 137 Ind. 523; Underhill on Crim. Evid., p. 470; People v. Glover, 71 Mich. 303; People v. Knight, 43 P. 6; Higgins v. People, 58 N.Y. 379; State v. Marcks, 140 Mo. 656; State v. Boyd. 178 Mo. 19.
On March 18, 1904, the grand jury of Saline county returned into the criminal court of Saline county the following indictment:
At the same term, and before pleading to the indictment, the defendant filed a motion to quash the said indictment on the ground that at the time the grand jury was sworn and impaneled he was in the Saline county jail and was not represented by counsel and that the aforesaid grand jury found this indictment against him; that had the court brought him into court at the impaneling, swearing and charging of the grand jury which returned this indictment, he would have challenged one Joseph Lineberry of Cambridge township, where the alleged offense was committed, for the reason that he was unable to investigate the charge preferred against this defendant in an impartial and unbiased manner on account of the bias and prejudice he held against defendant. As another ground for quashing said indictment he alleged that one William Fenwick was discharged from the grand jury and one John Rhoades was put upon said grand jury instead of said Fenwick; that at the time of the substitution of said Rhoades on the grand jury, the defendant was still in jail and not brought into court and permitted to challenge said grand juror; that if he had known and been permitted to make challenge, he would have challenged the said Rhoades on account of bias and prejudice of said Rhoades against him. This motion was heard by the court and overruled. Thereupon, the defendant was arraigned and entered his plea of not guilty to the indictment, and the case was continued until the second day of May, 1904, at which last-mentioned date the defendant was put upon his trial and found guilty of rape and his sentence assessed at ninety-nine years in the State penitentiary. In due time he filed his motion for a new trial, which was heard, considered and overruled by the court. Thereupon, the defendant was sentenced to the penitentiary according to the verdict of the jury. From that sentence he appeals to this court.
The evidence on behalf of the State tended to prove that the prosecutrix was a girl fifteen years of age who resided with and kept house for her father in the town of Slater, Saline county. Her father was a shoemaker and was also a vendor of newspapers. There were two younger children in the family, a little sister by the name of Lucile and a boy by the name of John. On or about the 29th of February, 1904, a woman claiming to be the wife of the defendant, visited the home of the prosecutrix several times for the ostensible purpose of renting a room in the house. During these visits this woman talked to the prosecutrix about taking a trip with her and the defendant up into Iowa. This proposition the prosecutrix at first declined to entertain, but, after several visits, the prosecutrix began to consider the proposed trip and had several conversations with the woman and the defendant. The woman agreed to purchase some clothing for the prosecutrix and had her go with her to a dressmaker, all of which was done without the knowledge of the father of the prosecutrix. It seems that the prosecutrix had relatives living in or near Oskaloosa, Iowa, and it was to this point the woman and defendant proposed to take her with them. One of the reasons given by the prosecutrix why she could not go in the first instance was that she had no suitable clothing. Thereupon, the woman proffered to provide her with the necessary clothes, and urged her to go with them, and the prosecutrix then agreed to make the trip with them. In returning to her home from the business portion of the city one evening, about eight o'clock, the defendant said to the prosecutrix that that night would be the best chance to go and she must go on the "Hummer," a train on the Chicago & Alton Railroad. This the prosecutrix declined to do, because she had her younger sister, Lucile, with her, and she would not leave her on the streets alone. Thereupon, the defendant called the woman, who passed as his wife, to one side and had a talk with her, and, after this, he said to the prosecutrix that his wife had told him all about their projected trip, and that this night would be their best chance to get away. It was then agreed between them that the defendant's wife and prosecutrix would take the little sister home, and the prosecutrix and defendant's wife would go to bed and pretend to go to sleep. After the other members of the Morrison family had retired, the woman and the prosecutrix quietly slipped out on the porch, put their shoes on and met the defendant, who carried their bundles across the street, and all three of them got into a buggy. They drove about six miles in the direction of Marshall, and, as they traveled along, defendant said to prosecutrix: "You do not want to get scared, for if anybody runs onto us, I have a pistol and will let the bullets...
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