The State v. Parris

• Decision Date: 23 June 1914
• Citation: 168 S.W. 629,259 Mo. 435
• Parties: THE STATE v. CHARLES PARRIS, Appellant
• Court: Missouri Supreme Court

168 S.W. 629

259 Mo. 435

THE STATE v. CHARLES PARRIS, Appellant

Supreme Court of Missouri, Second Division

June 23, 1914

Appeal from Iron Circuit Court. -- Hon. W. N. Evans, Judge.

Reversed.

Edgar & Edgar and J. H. Raney for appellant; Orchard & Cunningham of counsel.

John T Barker, Attorney-General, for the State; Paul P. Prosser and S. P. Howell of counsel.

ROY, C Williams, C., concurs.

OPINION

ROY C.

The defendant was charged with rape in an information against him, Elmer Loyd, Charles Middleton, Ora Robinson, Charles Dunn, William Brewer, Lemro Kelly and Arthur Parris. There was a severance. Defendant was convicted and sentenced to five years in the penitentiary. It is alleged that the offense occurred on October 19, 1912. The prosecutrix, Lily Mullane, was nineteen years old. She was born and reared in Virginia, near Richmond. She cannot read or write. She was married to Thomas J. Mullane in December, 1911. In August, 1912, she and her husband left Alexandria, Va., and tramped into Canada, and back through St. Louis, reaching Annapolis, in Iron county, about nine o'clock in the morning of the alleged offense. She testified that they traveled afoot and begged their food and lodging. It does not appear how they obtained any money. He often entered saloons and got drunk, while she waited on the outside nearby. When they reached the station at Annapolis, the defendant, Charles Parris, was sitting with Will Loyd in the door of the station. There was a well, a store and a hotel close to the station. The Mullanes got a drink at the well and started down the track south. Defendant testified that she winked and nodded at him as she passed. She denies it. Mrs. Mann, who kept the hotel, testified that Mrs. Mullane looked back as she started away. As the Mullanes passed down the track, Ralph Williams and the defendants Elmer Loyd, Charles Dunn and Charles Middleton followed some distance behind. There were others with them. Behind that crowd there followed a second company of young men, Irvin Lowness, Ora Robinson, Bill Brewer, this defendant Parris, and others. After going some distance down the track, the husband of prosecutrix went back and talked with the crowd of boys nearest him, then started back down the track towards his wife. The prosecutrix testified that he went back in response to a whistle or call. The defense denies that such whistle or call was made.

Joseph Lucy and John Thompson, two citizens living to the southward, were coming north along the railroad. They testified that the rock cut was a quarter of a mile or more south of the station and that they passed Mrs. Mullane two hundred yards north of the rock cut; that the first crowd of men was a hundred yards north of her, and that the men were sitting on the track. The second crowd was approaching forty yards to the north. They saw Mullane talking to the first crowd and saw him start in the direction of his wife who had stopped on the track. Lucy testified that as they passed the first crowd, some one said, "We will put them onto to her." Thompson testified that some one in the crowd said, "We'll wait and let those other fellows tackle her." He also testified that as they passed Mullane on the track, he did not notice that he was out of humor, that "he was just walking along like any other man."

The evidence for the defendant is to the effect that when Mullane talked with the men, it was arranged that for a money consideration they were to be allowed sexual intercourse with Mrs. Mullane. The men followed down the track and overtook the Mullanes. The defendant's account of what then occurred is as follows:

"A. He says, 'These boys have got a piece of money for you, if you want to make it; you know we are broke,' and she said, 'I don't know, I'm afraid it might be like it was up the road.'

"Q. Did she say how it was up the road? A. No, she didn't say how it was up the road; and he said, 'I believe this is a pretty nice bunch of boys,' and Elmer says, 'I've got a dollar if you want to make it,' and she said, 'I don't believe I want to,' and Mullane said, 'Go on, I believe this is a pretty nice bunch of boys,' and she repeated over, 'I'm afraid it might be like it was up the road.'

"Q. What else occurred? A. Then she says, 'Well, by God, give me five dollars,' and Elmer run his hand down in his pocket and pulled out the money and started to hand her a five dollar bill, and Mullane slapped him on the shoulder and says, 'Don't give her that much; that is too much for one man,' and he says, 'You all chip in and make it,' something like that, 'so that one man won't have to go so much,' and he slapped Elmer on the shoulder and said, 'By God, give me a cigarette,' and then Elmer said, 'If you are going with me, we'll have to go,' and they went on down the track, one on one side and the other on the other, I believe Elmer walked out on the edge of the ties."

Her account is as follows:

"Q. What occurred when your husband and these parties came up to where you were? A. Elmer Loyd asked me 'how about it?'

"Q. Well, what happened then? A. I told him no.

"Q. Go ahead. A. He throwed his arms around me and I throwed him off and he turned around and said, 'I asked you like a man, and if you don't choose to do it, I will make you,' and my husband turned around and said to me, 'For God's sake, go with him, you will have to go anyway.'

"Q. What was your husband doing when he said that to you? A. He was crying.

"Q. What appeared to be his condition at the time? A. He seemed like he was scared."

On her cross-examination the following occurred:

"Q. Your husband said, 'For God's sake, go with him, you will have to go anyway?' Yes, sir.

"Q. And you went? A. Yes, sir.

"Q. You didn't make any resistance? A. No, sir, not then.

"Q. Why didn't you? A. Because I was scared to death.

"Q. What were you scared at? A. Those fellows.

"Q. Had they threatened you or your husband in any way? A. No, sir.

"Q. Had they done anything to make you think that they would hurt you or harm you in any way physically? A. I don't know.

"Q. I am asking you if any of these boys had done anything in the way of making threats of personal injury to you or to your husband at that time? A. I can't remember.

"Q. Don't you know that they hadn't? A. I don't know sir.

"Q. You don't know -- weren't you standing right there? A. Yes, sir.

"Q. And you know that you hadn't seen anything in the way of threats or violence, don't you know that? A. No, sir, I don't know it.

"Q. At the time Loyd made this statement to you, that was all that had been said or done by any of those boys, wasn't it? A. Yes, sir, that I remember.

"Q. That was what made you scared to death? A. Yes, sir.

"Q. So that you were afraid to holloa or make any resistance? A. Yes, sir.

"Q. So you simply walked off with Loyd? A. He had ahold of my hand.

"Q. Was he pulling you along? A. Yes, sir.

"Q. Anyway, you walked off down there with him without making any resistance? A. Yes, sir.

"Q. You got over the right of way fence? A. Yes, sir.

"Q. How did you get over? A. Climbed over.

"Q. Ahead of him? A. Yes, sir, he held the wire down.

"Q. And you got over and waited for him to climb over? A. Yes, sir.

"Q. You stood there and waited for him to climb over. If you were scared to death at that time, why didn't you run? A. How was I going to run, I was a stranger there.

"Q. Well, can you give any reason why you didn't run? A. No, sir.

"Q. Can you give any reason why you didn't holloa? A. I didn't holloa."

It is conceded that Loyd did not have intercourse with her. She testified that she prevented him by slapping, scratching and kicking him. He testified that when he saw her underclothing it was so unclean that he left and went up town. It is conceded that later in the day he was again in the company that was with her and he made no further attempt to have intercourse with her.

James Rutter testified that he was in Webb's store in Annapolis that day before noon and heard a conversation between Loyd and William Brewer, in which Brewer said, "I don't believe that was his wife. He wilted when you threw the gun on him," and that Loyd, putting his hand back this way (indicating) said, "I said stand, you s -- of-a-b --. Boys, we will tie the s -- of-a-b -- to a rail."

On his cross-examination the following occurred:

"Q. Now, you have told about that conversation two or three different ways in these cases, haven't you? A. I don't think I have.

"Q. I will ask you if it isn't a fact that you have at times added considerable more than you have at other times? A. I have, yes, sir.

"Q. The first two or three trials of these cases you told a certain portion of what you have told now? A. That is correct.

"Q. Later on, you added some more? A. That is correct.

"Q. And tonight you left out part of some that you have told? A. That is correct.

"Q. And you never have told it right? A. Yes, I have told it right; I told all that was asked me."

He stated that Irwin Lowness and Ora Robinson were present at that conversation. Loyd and Lowness denied that such conversation occurred. Robinson and William Brewer did not testify.

After Loyd left Mrs. Mullane, four others had intercourse with her. Then followed this defendant Parris. She testified that the four and Parris accomplished their purpose in spite of her resistance. She testified that while Parris was with her two older men came to where they were, from an eastern direction. Those two men were John Jackson and Drew Lewis, who were looking for some hogs. Those men testified that they saw the sexual act between her and Parris, and that she made no resistance.

Lewis testified as follows:

"Q. What did you say took place when Parris got up? A. He says to me and...