The State v. Scott
| Decision Date | 04 March 1903 |
| Parties | THE STATE v. SCOTT, Appellant |
| Court | Missouri Supreme Court |
Appeal from Hickory Circuit Court. -- Hon. Argus Cox, Judge.
Reversed and remanded.
J. W Montgomery, F. M. Wilson and Rechow & Pufahl for appellant.
Section 2361, Revised Statutes 1899, is susceptible of but one construction and that is that if a man stands indicted for murder or any other homicide, and the evidence upon the trial shows the party to be dead from the assault made, then there can be no conviction for an assault, notwithstanding there must of necessity have been an assault, and in fact was an assault to produce the death. It might be said that every felonious killing involves an assault. We cannot believe that this court in the case suggested would permit a verdict of felonious assault to stand and the party dead. But we are not left to our construction. This court in the case of the State v. White, 35 Mo. 500, in which this identical section was before the court, gave it the construction contended for by us, and, indeed, as it seems to us, the only construction of which it is susceptible. It will be noted that in the White case the indictment was for rape in one count and an assault with intent in the other. Again this same question was before this court in the case of the State v. Lacey, 111 Mo. 513. In this case under the evidence the defendant was either guilty of rape or nothing and this court has held that instructions authorizing a conviction for a lesser offense are erroneous. State v Punshon, 124 Mo. 449; State v. Starr, 38 Mo. 272; State v. Wilson, 88 Mo. 19; State v. Turlington, 102 Mo. 962; State v. Mahly, 68 Mo. 318.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
(1) No brief has been filed in this case on the part of appellant. We, therefore, are forced to examine the bill of exceptions and motions for new trial and arrest of judgment for errors relied upon by appellant as grounds for reversal. The first reason set out in the motion for a new trial is that, "The court erred in overruling the defendant's motion to require the State to elect upon which particular charge upon the evidence the State would seek to convict." The court ruled properly. State v. Thornton, 108 Mo. 640; State v. Patterson, 88 Mo. 88; State v. Baxfield, 81 Mo. 151. (2) The court fully instructed the jury upon all the law of the case. The jury was instructed as to the essential elements constituting the crime with which he was charged. It was told that in law a girl, under fourteen years of age, is incapable of consenting to an act of intercourse; that if found guilty beyond a reasonable doubt the punishment would be death or imprisonment in the penitentiary at not less than five years, and that it was immaterial whether the act was committed on the date charged in the indictment or on some other date. They were also instructed as to the law on the question of an assault with intent to commit a rape, of which defendant was convicted. The evidence shows defendant to be guilty beyond question. The testimony of the prosecutrix is corroborated by proof of confession and the condition of the girl. The point is not raised in the motion for new trial as to sufficiency of the evidence to support the verdict. It, therefore, becomes unnecessary to discuss that proposition.
OPINIONIn Banc
-- On August 26, 1901, the prosecuting attorney of Hickory county began this prosecution by filing in the office of the clerk of the circuit court an information verified by his official oath, charging the defendant with rape upon Laura Huffman, a female child under the age of fourteen years. The offense was alleged to have been committed on March 6, 1901. A plea of not guilty was entered upon his arraignment and defendant put upon trial and found guilty of an assault with intent to commit rape and his punishment assessed at two years in the penitentiary. The defendant and the father of the prosecutrix lived on adjoining farms, in Hickory county, about one-half mile apart. The prosecutrix was about twelve years old and was living in her father's family. The two families were related, and up to the time the complaint was first filed against defendant, in this case, the most friendly relations existed between them. The evidence discloses that on various occasions when defendant intended to be absent on business or on hunting expeditions which would keep him out late at night he was in the habit of requesting the prosecutrix and her sisters to stay with his wife, with the consent of her parents. It further appears that defendant would not return from his hunting trips until midnight and sometimes nearly daylight the next morning.
The evidence tends to show that defendant began to take improper liberties with the prosecutrix on one of the occasions when she slept at his house, by coming into her room next morning before she had arisen. In the latter part of the winter or the early spring of 1901, defendant came to Mr. Huffman's, the father of the prosecutrix, and said he was going on a turkey hunt that night and wanted prosecutrix to go and stay with his wife, and she went with him and stayed that night. She slept in one bed and defendant's wife in another in the same room. Defendant returned about midnight and went to bed with his wife. Prosecutrix testifies that later in the night she was awakened by defendant, again taking improper liberties with her person and finally attempting to have intercourse with her, but on that occasion failed. She testified she knew this was all wrong but she was ashamed to tell his wife or her parents.
On March 6, 1901, he went on another turkey hunt and prosecutrix and her sister, Beulah, went to stay with his wife and went to bed and slept. She was again aroused from her sleep by defendant feeling her person and found him in bed with her. She made no outcry and on that occasion he accomplished his purpose. On another occasion Minnie Huffman, an older sister, went with prosecutrix to the home of defendant, because her mother and father were absent on a visit, and her brother had gone to a lodge meeting at Cross Timbers. Defendant had gone hunting that night and came in late and when she waked she found defendant in the bed with her and her sister the prosecutrix. When her brother came from the lodge she went home with him. Two physicians testified to an examination of the prosecutrix and found the hymen destroyed and her private parts lacerated. When defendant was arrested, he was placed at his request under guard till his examination before the justice. Bent Ihrig, a deputy constable was the guard. At defendant's request Ihrig took defendant to his home on Monday. Ihrig testified that soon after starting out of town on this trip he said to defendant, "You have got yourself into a right smart little trouble, it seems like," to which defendant replied he didn't think they could do anything with him. "They will just cause me a little trouble is about all." "If I did, she was willing," or words to that effect. The guard expressed the opinion that the girl's age was what would hurt him, but defendant thought if she was willing it was all right.
There was much controversy as to the exact date of the offense, the defendant introducing various witnesses to show it could not have occurred on the 6th of March, and the State a number to show that it occurred on the night of a party at a neighbor's, Mr. Smith's, which several witnesses fixed quite definitely as March 6th.
No effort was made to impeach the previous good character or general reputation of the prosecutrix for truth and veracity, to show any unfriendly feelings as the basis of the charge, but the defendant contradicted her evidence, and his wife testified that the act could not have occurred as detailed by prosecutrix without waking her as she slept in the same room with the prosecutrix.
An effort was made to impeach the witness Ihrig by showing his general reputation for truth and veracity was bad, but it appears to have been unsuccessful as the weight of the evidence on that point tended to show it was good.
A reversal is sought on various grounds which we now proceed to examine.
I. The circuit court over the objection of defendant permitted the State to prove by two physicians, Drs. Curl and Harley, that they made an examination of the private parts of the prosecutrix about the first of July, 1901, and found the hymen destroyed and a laceration of the tensor vagina muscle which had not yet entirely united.
The objection is that this evidence was too remote, and counsel rely upon the decisions in State v. Houx, 109 Mo. 654, 19 S.W. 35, and State v. Evans, 138 Mo. 116, 39 S.W. 462, as sustaining their contention.
In State v. Houx, supra, the objectionable evidence in no way tended to prove the perpetration of the offense, but was in response to an inquiry as to the condition of the girl's health after the commission of the offense, and the witness was allowed to state that his daughter lingered for three months and would take spells, and in commenting on this evidence, Judge Macfarlane, who wrote the opinion, said, "Its only effect could have been to show an aggravation of the offense, and excite abhorrence in the minds of the jury, and thereby increase the punishment." It is obvious that the evidence in this case had no such purpose in view, but was directed solely to the ascertainment of whether there had been in reality an outrage committed on the child, Laura.
Neither of the physicians was called upon to detail her probable suffering after the injury, save in response to inquiries propounded by defendant's counsel, who insisted on proving that it would have been so painful...
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