The State v. Yocum
| Decision Date | 09 November 1893 |
| Citation | 23 S.W. 765,117 Mo. 622 |
| Parties | The State v. Yocum, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. W. M. Robinson, Judge.
Affirmed.
J. W McAntire for appellant.
(1) The conversation between the prosecuting witness and Mrs. Swartz in relation to what occurred at the time the rape was charged to have been committed was competent as a part of the res gestoe. Brownell v. Railroad, 47 Mo. 239; State v. Sloan, 47 Mo. 611; Harriman v. Stowe, 57 Mo 96; Leahey v. Railroad, 97 Mo. 165. The giving of instructions which are misleading is error. State v Bailey, 57 Mo. 131; State v. Patterson, 98 Mo. 283; State v. Herrell, 97 Mo. 105; State v. Graham, 96 Mo. 120. (2) To constitute rape, the act must be intended to be done with force and without the woman's consent. The instruction clearly enunciated the conditions and elements which it takes to make up the crime of rape, or attempt to rape. State v. Cunningham, 100 Mo. 394; State v. Perkins, 11 Mo.App. 82. (3) The court erred in refusing to give the instructions asked by defendant. State v. Priestly, 74 Mo. 24; State v. Burgdorf, 53 Mo. 65. (4) The court erred in instruction number 2 given of its own motion; it was founded on Revised Statutes, 1889, section 3940, but did not come within its terms.
R. F. Walker, Attorney General, for the state.
(1) The defendant made no objection and saved no exceptions to the action of the trial court in giving the twelve instructions upon its own motion; hence, though the court may have refused the three instructions asked by defendant, although he saved his exceptions to such action of the court, he will be taken to have consented to, and acquiesced in, the giving of said instructions, and will not be heard now to complain. (2) The testimony of Mrs. Swartz, the midwife, who was called at the instance of the father of the prosecutrix, and in her professional capacity consulted with prosecutrix, heard her statements and made an examination of her person, was inadmissible for the reason that it was privileged, and the court committed no error in excluding it on objection of the representative of the state. State v. Dawson, 90 Mo. 149; King v. Kansas City, 27 Mo.App. 231; Corbet v. Railroad, 26 Mo.App. 621. (3) Again, the proper foundation had not been laid for the impeachment of the prosecutrix by the testimony of the midwife. This was necessary. State v. Foye, 53 Mo. 336; Thompson v. Ish, 99 Mo. 160.
At the September term, 1892, of the Jasper circuit court, an indictment containing two counts was returned by the grand jury, the first charging the defendant with rape upon Nancy Roten; the second, with an assault with intent to rape her on the night of the fourth of August, 1892.
Defendant was duly arraigned, and entered his plea of "not guilty." The cause was tried at Joplin at the December term, 1892, and the following verdict rendered by the jury:
A motion for a new trial, assigning various grounds, was filed in due time, and overruled. The errors assigned in this court relate to the exclusion of evidence and the giving and refusing of instructions, all of which will appear in the order of the defendant's brief.
I. The defendant complains that the circuit court refused to permit Doctor Swartz to state what the prosecutrix said to her about a week after the rape was attempted. The question was: "State if the girl told you anything about her condition, and what declaration she made to you." Upon the objection of the prosecuting attorney, the court said: "You may examine her as to what she said about her organs at the time, what complaint she made, but nothing as to how it occurred." To which counsel for defendant excepted, and said: "We propose to prove by this witness that at the time she made the examination of the prosecuting witness (about one week after the alleged attempt) she made a statement as to how this occurred at the time she claims to have been raped." The court thereupon ruled that anything the girl may have said at that time as to how it happened was incompetent, and defendant excepted.
It will be observed that these questions in no way referred to the statement made by the prosecutrix, constituting a part of the res gestoe; nor was it asked by way of impeachment, a proper foundation having been laid. As the prosecutrix was not a party to the record, her statements, except as a part of the res gestoe, or by way of impeachment, were wholly inadmissible against the state. State v. Noeninger, 108 Mo. 166, 18 S.W. 990; McMillen v. State, 13 Mo. 30.
II. The court, of its own motion, gave these instructions:
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