The State v. Welch

• Decision Date: 21 November 1905
• Citation: 89 S.W. 945,191 Mo. 179
• Parties: THE STATE v. JOHN WELCH, Appellant
• Court: Missouri Supreme Court

89 S.W. 945

191 Mo. 179

THE STATE v. JOHN WELCH, Appellant

Supreme Court of Missouri, Division Two

November 21, 1905

Appeal from New Madrid Circuit Court. -- Hon. Henry C. Riley, Judge.

Affirmed.

Geo. H Traylor and H. C. Riley, Jr., for appellant.

(1) The court erred in overruling defendant's demurrer to the State's evidence at the close of the State's case. State v. Patrick, 107 Mo. 147; State v Burgdorf, 53 Mo. 65. (2) The court erred in permitting witness Dorrity, the son of the prosecutrix, to testify for the State over the objections of the defendant, after the witness had sat in the courtroom in the presence and hearing of the witnesses during the progress of the trial, after the witnesses were sworn and excluded under the rule. (3) The verdict is the result of prejudice and passion of the jury against defendant, as will clearly appear from a careful examination of all the evidence in the case and from their excessive verdict of thirteen years in the penitentiary. State v. Primm, 98 Mo. 368; State v. Young, 119 Mo. 495; State v. Custer, 93 Mo. 242; State v Packwood, 26 Mo. 340.

Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.

(1) The evidence was not only sufficient to make out a prima facie case, but the State's evidence made out a strong case against defendant. Convictions of rape and of assault with intent to rape have been sustained in many instances where the evidence was mach weaker than in the case at bar. State v. Huff, 164 Mo. 480; State v. Sanford, 124 Mo. 484; State v. Shroyer, 104 Mo. 441; State v. DeWitt, 152 Mo. 86; State v. Napper, 141 Mo. 406; State v. Hibler, 149 Mo. 478; State v. Hyatt, 179 Mo. 344. (2) Even if witness Dorrity had violated the rule of the court, the State should not have suffered thereby, unless it had been shown to the court that the State's attorney was a party to the violation of said rule. State v. Sumpter, 153 Mo. 436; State v. Fannon, 158 Mo. 149.

OPINION

BURGESS, P. J.

At the September term, 1904, of the New Madrid Circuit Court, upon an information theretofore filed by the prosecuting attorney of said county, defendant was convicted of the crime of rape upon Frances M. Dorrity, and his punishment assessed at thirteen years imprisonment in the penitentiary. The defense was an alibi. Defendant's motions for a new trial and in arrest of judgment having been overruled, he appeals to this court.

The prosecutrix was a widow, forty-one years of age, her husband having been dead eleven years, and resided on her farm near Cushion Lake, in New Madrid county. She was the mother of four children, the youngest of whom was nine and the eldest sixteen years of age, all of whom were at home with her on the night of the alleged assault, except the eldest boy, Boss Dorrity. The defendant was a bachelor, thirty-eight years of age, and worked for and managed the farm of the prosecutrix seven or eight years in succession after the death of her husband, and about a year prior to the alleged rape he went to work in a blacksmith shop at Stewart, in Pemiscot county, about three miles distant from the prosecutrix.

On Saturday night, October 3, 1903, according to the testimony of the prosecutrix, she retired early and went to sleep. With her in bed was her little daughter, twelve years of age, and her son and Tom Young, a neighborhood boy, slept in an adjoining room. Between nine and ten o'clock she was awakened by defendant, who was on top of her and in the act of having sexual intercourse with her. She testified that she resisted all she could and told defendant to get off and go away, but with one hand he clutched her throat and placed the other over her mouth, which prevented her from screaming. She stated that she was a weak woman and in ill health, had not yet quite recovered from an attack of smallpox, weighed but one hundred and seven pounds, and the assault occurred during the period of menstruation, so that she did not have sufficient strength to successfully resist the defendant and shake him off. When the defendant got through and removed his hands from her mouth and throat she screamed, and defendant made his escape through a window near the bed. After getting outside the house he threw a club at the window breaking it in. Prosecutrix was well acquainted with defendant, and, as it was a moonlight night, she easily recognized him. As soon as defendant left she immediately awoke her children and Tom Young, all of whom were fast asleep, but she did not tell them what had occurred, "because it was not very nice talk to tell." She then put on her skirt and shoes and, accompanied by the children, went to the house of her nearest neighbors, Mr. and Mrs. Ike Grimes, living about a mile distant from her home. She arrived there between ten and eleven o'clock and made complaint of the assault in full to Mrs. Grimes. After applying camphor to her injured throat the family retired, but prosecutrix was unable to sleep. The next day, Sunday, she made complaint to a justice of the peace, and defendant was arrested about noon that day. She denied ever having had any conversation with defendant after he was arrested and released on bail.

Mrs. Ike Grimes testified at the trial to the distressed condition of the prosecutrix and her complaint against defendant when she came to her house on Saturday night, October 3, 1903.

Alfred Kincaid testified that he lived between the home of the prosecutrix and the village of Stewart, and that on the night of October 3, 1903, between ten and eleven o'clock, he saw, recognized and spoke to the defendant, who was carrying a gun and lantern; that defendant was passing the home of witness and going towards Stewart in a direction from the house of the prosecutrix.

B. C. Grimes swore to a conversation he had with defendant about a month before the alleged assault, in which conversation defendant suggested that the witness could go to the home of the prosecutrix, go into her room and have sexual intercourse with her if he had the grit. Witness stated that about sundown on the evening of October 3, 1903, he was at defendant's shop in Stewart and asked him to do some work for him, but that defendant declined, saying that he was going out; that defendant left the shop, going westward in the direction of the house of prosecutrix, and took a lantern with him.

Another witness for the State, George White, testified that on October 3, 1903, he lived at Stewart and slept in the same room with defendant and others; that defendant did not retire until about midnight that night, and that he came into the room on tip-toe. He did not notice whether defendant had a gun or lantern with him. On the day of his preliminary examination defendant stated to witness that he could not prove where he was on any five minutes of the night of October 3, 1903. The testimony of this witness respecting the hour defendant retired was corroborated by Goah Dorrity, nephew of the prosecutrix, who slept in the same room with defendant and witness White. Boss Dorrity, a son of prosecutrix about eighteen years of age, also slept in the same room, but did not hear defendant come in that night. Witness testified that next day, after he had heard of the assault on his mother, he went home and saw the broken window in his mother's room and a club lying near the window.

Defendant, testifying in his own behalf, denied making the alleged assault on Mrs. Dorrity, and stated that he was at work in his shop at Stewart from dark till between nine and ten o'clock that night; that after getting through with his work he went to the lunch-room of Ed. Welbron and ate some oysters there, going from thence straight to his room and bed, his room being about one hundred steps from Welbron's store; that at the time he retired he did not know whether all the boys occupying the same room had gone to bed, as he did not light the lamp; that he used a lantern to work by in his shop that night and that he was drilling some holes in blocks for a log wagon belonging to the Coombs' mill. He further testified that after he was arrested and released on bond, the prosecutrix came to him and wanted him to file her saw. Defendant denied having told George White or anybody else that he could not prove where he was on any five minutes of that night.

Ed. Welbron testified that he was engaged in running a grocery store and lunch counter at Stewart on October 3, 1903. He saw defendant at work in his shop between eight and nine o'clock that evening drilling holes in some iron pieces by the light of a lantern; that defendant worked till ten o'clock and then came to his store, where he bought and ate some potted ham, and that after he had been in the lunch-room about twenty minutes defendant started for his room, saying he was feeling sleepy. Witness attended the defendant's preliminary examination and heard George White say, in the presence of Bud Killian, that he was asleep and did not know what time defendant went to bed on that Saturday night. He heard prosecutrix testify at the preliminary that the defendant came in and went out of her house by the door, and that the assault was committed between ten and eleven o'clock. Bud Killian, testifying, corroborated Welbron's testimony respecting the alleged statements of both witness White and the prosecutrix at the preliminary examination.

Tom Young, for the defense, testified that he was eighteen years of age and lived at the home of the prosecutrix on October 3 1903. He and a son of the prosecutrix slept in a room adjoining her bedroom. Witness stated that after they retired, the prosecutrix went out for a drink of water. He was awakened that night by hearing the stroke which broke the window, and then the prosecutrix ran...