text:
    THE STATE v. LESLIE WERTZ, Appellant.
    Division Two,
    December 12, 1905.
    1. RAPE: Sufficiency of Evidence. The evidence in this case, which was a prosecution for rape, is examined, and it is held that the court, in overruling defendant’s demurrer to the evidence and submitting the case to the jury, committed no error.
    2. -: Incompetent Evidence: Conclusion of Witness. In a prosecution for rape a witness for the State was asked, over the objection of defendant, if from what he heard the prosecutrix say and from her actions he understood she had been outraged by defendant, to which the witness answered that from prosecutrix’s general appearance he would be inclined to think she had been mistreated. Held, that this question and answer should have been excluded, for the reason that the question sought and the answer gave the conclusion of the witness which it was the province of the jury to draw.
    3. -: Reputation of Defendant: Prior to Charge. Where witnesses have testified to the good reputation of defendant prior to the charge contained in the information, the State, in its examination of such witnesses, should be confined to that issue, and should not be permitted to inquire as to specific delinquencies of the defendant committed since the charge was preferred.
    4. -: Cross-Examination of Defendant: Contradictory Statements: By Party Against Interest. Defendant, in his examination in chief, testified that he had had no scuffle with the prosecutrix, and that he did not choke her or use any violence, nor compel her to have intercourse with him. On cross-examination he was asked if he had not stated to other parties that prosecutrix “told her story all right at the preliminary hearing, except as to the choking,” and that prosecutrix had fought like everything at first. Held, that this cross-examination was proper, since it related to the subject of force in making the assault. Held, also, that defendant’s statements to the other parties, being made by a party to the suit against his interest, and upon a subject material to the case, were admissible as original evidence, and there was no necessity of laying a foundation for the purpose of contradicting defendant.
    5. -: General Instruction on Reasonable Doubt Sufficient. The singling out of certain essential elements of the offense about which testimony is given, and instructing the jury by separate instructions that they must believe and find every one of such facts beyond a reasonable doubt, is not approved; a general instruction on the question of reasonable doubt is all that is necessary. And, therefore, where, in a prosecution for rape, the court had given such general instruction, it properly refused a separate instruction that the jury must believe beyond a reasonable doubt that the intercourse was had with force.
    6. -: Instruction: Defendant’s Good Character. An instruction that “the previous and present good character of the defendant, if proven, alone and of itself can not justify, excuse, palliate, or mitigate the offense,” is criticised as to form, but the giving of such instruction is held not to be reversible error when it is read in connection with another which told the jury “that in considering the question as to Whether or not the defendant is guilty or innocent of the crime charged against him, you should take into consideration and duly weigh, along with all the other evidence in the case, the evidence offered by the defendant as to his previous character as a law-abiding citizen.”
    7. -: Expert Testimony: Erroneous Instruction. The court gave the following instruction: “Whether the hypothetical case on which the opinions of the experts are based corresponds to and coincides with the facts given in the evidence, the jury alone must determine from the evidence produced in this case. And if the jury finds such hypothetical questions suppose facts not given in evidence, they, together with the opinions of the experts based thereon, should be entirely disregarded by the jury in making up their verdict.” Held, that such instruction was erroneous, and the giving of it constituted reversible error, since it was for the court to determine whether there was any evidence upon which to base the hypothetical questions, and to exclude them and the answers to them if the hypothetical case did not correspond with the facts given in evidence.
    8. -: Outcry and Complaint: Instruction. The court gave the following instruction: “If the jury believe from the evidence that the defendant forcibly ravished and carnally knew the prosecutrix, against her will, they should find him guilty, even though they may further believe that after she was so ravished by defendant she rode in the buggy with him for several miles and passed by houses where strangers lived without calling out to the occupants of such houses to inform them of her trouble.” Held, correct as an abstract proposition of law, though it would have been more appropriate to let the jury consider such testimony under a proper instruction by the court, advising them that the failure to make outcry or complaint should be considered in tbe light of the opportunity for so doing, and the conditions surrounding the prosecutrix at the time of such failure.
    9. PRACTICE: Leading Questions: Discretion. The examination of witnesses and the manner of eliciting testimony rests largely in the discretion of the trial court, and unless it is manifest that such discretion is abused by the court’s permitting the asking of leading questions, the appellate court will not interfere.
    Appeal from Putnam Circuit Court. — Hon. Paris C. Stepp, Judge.
    Reversed and remanded.

      N. A. Franklin, B. L. Robinson and T. B. Davis for appellant.
    (1) The court erred in overruling defendant’s demurrer to the evidence at the close of the case. Champagne v. Harney, 189' Mo. 709; State v. Harney, 168 Mo. 167; State v. Huff, 161 Mo. 459'; State v. Patrick, 107 Mo. 147. (2) The court erred in permitting witnesses to testify that from the general appearance of prosecutrix they were inclined to think she had been mistreated. Such understandings are not allowed to pass for evidence in civil cases, and this is so a fortiori in criminal cases. State v. G'ritzner, 134 Mo. 525; State v. Hagan, 164 Mo. 672;' Roe v. Bank, 167 Mo. 422. (3) It was error for the court to permit the State to attempt to break down the character of the defendant by the cross-examination of the witnesses Jones and Holly, by stating that since, the alleged rape they had heard of other specific delinquencies of the defendant, that he had, as they had heard, been guilty of other specific offenses. All of this evidence was what the witnesses had heard in regard to the defendant’s conduct after he is alleged to have outraged the prosecutrix. State v. Vandiver, 149 Mo. 502; State v. Hale, 156 Mo. 109; State v. Lockett, 168 Mo. 489; State v. Prendible, 165 Mo. 359. (4) The court erred in giving instruction 4, on behalf of the State. ’ The instruction, instead of telling the jury to weigh the evidence of defendant’s good reputation, if proven, along with the other evidence, in effect tells the jury that his good reputation is not to be considered as tending to show his innocence. Fisher v. Lead Co., 154 Mo. 479; State v. Austin, 113 Mo. 538. (5) Instruction 8, given on behalf of the State, is clearly vicious and prejudicial. Hoyberg v. Henske, 153 Mo. 74; Copeland v. Railroad, 175 Mo. 662; Markey v. Railroad, 185 Mo. 364.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The asking of leading questions is always left to the sound discretion of the trial court. State v. Whalen, 148 Mo. 290'; State v. Napper, 141 Mo. 401. (2) (a) In cross-examining State’s witness William Smith, defendant’s counsel proved by him that defendant enjoyed a good reputation prior to this trouble, the witness saying that he had never heard it questioned before this time. Having made Smith a witness for defendant on that subject, the State then had' a right to cross-examine him. Nichols v. Nichols, 147 Mo. 387; State ex rel. v. Branch, 151 Mo. 641. (b) No error was committed in the cross-examination of defendant. The prosecuting attorney was permitted to ask defendant if he did not make certain statements to Albert Collins and to Sam Hollinger, which were contradictory to the evidence given by him in chief. He denied making any such statements; and the State, in rebuttal, then proved by said two witnesses, without objection from defendant, that defendant did make such statements. This was proper. State v. Avery, 113 Mo. 500'; State v. Miller, 156 Mo. 85; State v. Miller, 191 Mo. 587; R. S. 1899', sec. 2637. (3) When a witness testifies that defendant’s general reputation is good because he has heard nothing against him, it is then proper for the State to ask if he has not heard of certain matters which did reflect on his character. Neither did the court commit any error in its ruling on the cross-examination of defendant’s other character witness, Holly, for the same reason. 2 Wig-more on E-v., sec. 988; State v. Young, 153 Mo. 449 ; State v. Westlake, 159 Mo. 6791. (4) As defendant procured an instruction on the subject of the failure of prosecutrix to make complaint to the people living in the one house which she saw and passed by after the commission of the alleged crime, it was certainly proper for the court, at the request of the State, to give an instruction on the same subject presenting the State’s contention. In addition the complained of instruction is the law, and it has been decided to be the law many times. One of the greatest authorities on criminal law says: “But the rule respecting the time that elapsed before the prosecutrix complains, will not apply where there is good reason for the delay, as that she was under the control or influenced by her ravisher. ’ ’ Ohitty on Crim. Law, 812; State v. Byrne, 47 Conn. 465; Higgins v. People, 58 N. Y. 377; Bennett v. State, 102 Ga. 656; Com. v. Cleary, 172 Mass. 177. (5) No error was committed in giving State’s instruction 4 on the value of the evidence of defendant’s good reputation. When this instruction is l’ead in connection with defendant’s instruction 8, on the same subject, it will be seen that the law was properly declared. State v. Darrah, 152 Mo. 541; State v. Matthews, 98 Mo. 130; State v. Smith, 164 Mo. 585; State v. Noeninger, 108 Mo. 166. (6) State’s.instructions 7 and 8, on the value of expert testimony, were correct. It is a fact well known to this court, and to every other court, that expert testimony is very uncertain and many times very unreliable. Hence the importance of properly advising the jury with reference to its value. Allen v. Railroad, 183 Mo. 437; State v. Dunn, 179 Mo. Ill; Hoyberg v. Ilenske, 153 Mo. 74; State v. Dues-trow, 137 Mo. 75- State v. Pagels, 92 Mo. 316; Rogers on Exp. Test., see. 201; Lawson on Exp. and Col. Ev., pp. 282-284.
   FOX, J.

This cause is now pending in this court upon an appeal by the defendant from a judgment of conviction in the Putnam County Circuit Court of the offense of rape. The information, charging the defendant with forcibly ravishing Lulu Barnett, was filed on August 26, 1904. The alleged offense was charged to have been committed on June 12, 1904. On August 31, 1904, defendant was put upon his trial in the Putnam County Circuit Court upon the charge contained in the information. As the sufficiency of the information is in no way challenged, it is unnecessary to reproduce it.

The testimony on the part of the State tended to show that the prosecutrix, Lulu Barnett, and the defendant had known each other for a number of years and had lived near each other during that time, except a few years while defendant was absent in Texas. Prosecutrix resided with her parents in Putnam county; they had formerly resided in Cass county. Members of the families of prosecutrix and defendant were related by marriage. On June 12, 1904, defendant, prosecutrix and a number of other young people went together to Newton and from there to Lucerne and attended a baseball game, returning to Newton about five o’clock p. m. At Newton they attended some children’s exercises in the church, defendant and prosecutrix returning home together in a buggy. Prosecuting witness said that on the road about three miles from Newton, defendant attempted to take improper liberties with her in the buggy; that she resented it, and that the defendant forcibly took hold of her and choked her and a struggle ensued, and that she made all the resistance that she could until her strength gave out, and that after spending all of her efforts defendant succeeded in ravishing her. This all occurred in the buggy, and after the struggle prosecutrix was on the left-hand side of the buggy seat and defendant on the right-hand side. She further states that they drove on for some distance but that she talked but very little; she does say, however, that she said to him something about whether or not the other young folks had gotten home, and she also made some remark about the lightning bugs. She then states that after having gone some distance the defendant made a second effort to have sexual intercourse with her and that she again resisted. At this second attempt to have sexual intercourse the prosecuting witness said to him that she would not tell on him if he would let her alone. About this time prosecutrix jumped out of the buggy and the defendant’s team started to run, and defendant then left the prosecutrix and took charge of his horses. The prosecutrix then made her way to the residence of E. M. Gregory, and witness states that she complained to Mrs. Gregory, telling her what defendant had done, saying that he had nearly killed her and had treated her worse than a dog. After talking with Mrs. Gregory and getting a drink of water, she was taken up to a room occupied by Miss Bertha Wood, where she went to bed and remained the rest of the night. After the family had retired, the defendant called up from the road and asked Mr. Gregory if he had a stray girl up there, to which Mr. Gregory replied that the prosecutrix was there and had gone to bed and did not believe that she cared to see him. He gave his name and then drove away. Mr. and Mrs. Gregory testified to the complaint made by the prosecutrix upon coming to the house, and that she seemed to be in a distressed and excited condition. Mrs. Gregory testified that the prosecutrix did not tell her, upon coming to the house that night, that the defendant had forcibly ravished her, and did not complain of being bruised, but told her that Leslie Wertz had treated her worse than a dog. On the next morning, however, the question being propounded to the prosecutrix by Mrs. Gregory, she stated that the defendant had forced her. Mrs. Gregory testified that prosecutrix seemed to be in distress and in trouble; had a troubled look, and that she saw a spot of blood on her underclothes; this, however, was accounted for by the fact that it was the time of her menstrual period. Prosecutrix further testified that she complained to her father and mother of this assault, and her father testified to bruises on her arms, and that she complained and suffered for some weeks thereafter. A necklace and locket, which were worn by the prosecutrix on that night, were found by a Mr. Wood a week later and identified by the prosecutrix. Mr. Wood found them in the mud on the left-hand side of the road, the side on which prosecutrix was riding in the buggy. The testimony tended to show that this assault occurred between the hours of ten and twelve o’clock, at a place where there was timber and underbrush on-one side of the road and growing corn on the other. It also appeared in evidence that a ruffle of the skirt of the prosecutrix was torn.

Complaint was made by the father to the justice of the peace, and the defendant was arrested by the constable. After the arrest of the defendant by the constable, he requested the officer to take him by the home of the prosecutrix with a view of compromising the case. Upon seeing her, she accused the defendant of choking her; the defendant denied this and said she was telling a lie, that he did not choke her.

Defendant offered testimony tending to show that the ruffle on the skirt of the prosecutrix was torn off while she and others were walking in the afternoon before the alleged assault. Three physicians were introduced who testified that the choking of prosecutrix would leave marks on her neck which would linger from five days to a week. Numerous witnesses were introduced showing the good reputation of defendant. Defendant testified in his own behalf and denied choking or beating or using any violence toward prosecutrix and absolutely denied forcing her to have intercourse with him.

The State in rebuttal offered two witnesses, one of whom testified that defendant, in speaking of this woman, said that she fought him some but finally gave in; the other testified that shortly after the preliminary examination defendant said that prosecutrix testified to the story just as it was except as to the choking.

Defendant denied having any such conversations with the witnesses.

This is a sufficient indication of the testimony upon which this cause was submitted to the jury to enable us to pass upon the legal propositions presented by the record. The court instructed the jury and the cause was submitted and they returned a verdict of guilty, assessing defendant’s punishment at imprisonment in the penitentiary for a term of five years. The instructions complained of will be given due consideration during the course of the opinion.

Motions for new trial and in arrest of judgment being overruled, sentence and judgment in accordance with the verdict of the jury were entered of record, and the defendant in due form and time prosecuted his appeal to this court, and the record is now before us for consideration.

OPINION.

The record in this cause discloses numerous assignments of error as a basis for the reversal of the judgment in this cause. We will give the complaints of appellant such consideration as their importance merit, and will treat of them in the order suggested by the brief of counsel.

I. It is insisted that the court erred in overruling the defendant’s demurrer to the evidence at the close of the case. We have carefully read in detail the evidence disclosed by the record in this cause, and it will suffice to say that upon the testimony introduced the case was one for the jury, and the court, in overruling the demurrer to the evidence and submitting the case to the jury, committed no error.

II. Complaint is made that the court erroneously admitted incompetent evidence offered by the State. Our attention is specially directed to the testimony of Mrs. E. M. Gregory and Miss Bertha Wood, the witnesses by whom the State sought to show that prosecutrix, shortly after the assault, made complaint of the outrage. This question was propounded and answered by the witnesses, to which objections and exceptions were duly preserved: “Q. I will ask you if, from what you heard her say there, if you understood from what she said and her actions there she had been outraged by this man Wertz? A. Well, from her general appearance I would be inclined to think she had been mistreated.” This question and answer should have been excluded. It simply sought the understanding and conclusion of the witnesses from what was said by the prosecutrix, which was clearly inadmissible. Witnesses should state the facts, and it is the province of the jury to draw conclusions from such facts. The State had the right to inquire of these witnesses, to whom complaint was made, as to what the prosecutrix said. If the witnesses were unable to remember precisely what was said, then under the rules of evidence they would be permitted to give their impression as to what was said, but we know of no rule of evidence which permits a witness to give his understanding or conclusion as to what was meant by certain statements made. It has been ruled by this court that suppositions, understandings and conclusions of witnesses are not allowed to pass for evidence, even in civil cases, and the rule is equally applicable to evidence in criminal cases. [State v. Gritzner, 134 Mo. 512; State v. Hagan, 164 Mo. l. c. 672; Roe v. Bank, 167 Mo. l. c. 422.]

III. It is insisted that the court improperly permitted the State to attempt to break down the character of the defendant, by admitting testimony of specific delinquencies of the defendant, by permitting testimony which the witnesses had heard of since the charge upon which the defendant was on trial. This objection is directed to the examination by the State of witness Smith, as well as the cross-examination of witnesses Jones and Holly. These witnesses had testified to the good reputation of the defendant prior to the charge contained in the information. The issue presented by the defendant upon this subject was his good reputation prior to being charged with the offense for which he was being tried, and the examination of tírese witnesses should be confined to that issue, and while the State, upon cross-examination of a witness who had testified as to the general reputation of the defendant, may inquire of the witness of specific instances in which the character of the defendant was reflected upon, yet this inquiry should not extend to discussions reflecting upon the defendant’s reputation which had occurred since the charge in the information had been preferred. Of course it is not meant by this to say that the State, after the defendant testifies in his own behalf, for the purpose of affecting his credibility, would not be permitted to introduce testimony as to his general reputation for morality up to the time of the trial.

IY. The appellant complains of the action of the trial court in permitting the State to' cross-examine the defendant as to conversations had with witnesses Collins, Hollinger and Howard. The defendant in his examination in chief stated that he had had no scuffle with the prosecutrix on the night upon which the assault is charged to have been made, and that he did not choke her or use any force or violence, nor did. he compel her to have intercourse with him. The conversations with the witnesses above designated, to which the objection is urged and to which the attention of the defendant was directed, consisted of inquiries of the defendant whether or not he had said to Albert Collins that “Lulu Barnett told her story all right at the preliminary hearing, except as to the choking,” and that he had said to witness Sam Hollinger that prosecutrix had fought like everything at first, and to the witness Howard the same statement as made to Collins. We are of the opinion that this cross-examination was proper; it related to the subject of force in making the assault upon prosecutrix, about which the defendant had testified in his examination in chief; aside from this, the testimony of Collins, Howard and Hollinger was admissible as original evidence, and there was no necessity of even calling the defendant’s attention to the conversations. It was a statement by a party to the suit against.his interest and upon a subject material to the ease, and therefore there was no necessity of laying a foundation for the purpose of contradicting him. The cross-examination of the defendant in the case of State v. Avery, 113 Mo. 475, involved this same question, and it was expressly ruled that there was no error in such cross-examination. Burgess, J., speaking for the court in that case, said: “In the case of the State v. West, 95 Mo. 140, the defendant on cross-examination was asked if he did not state to Si Finley that day, the day of the homicide, that he had the same right to-kill a man who was trying to steal his land, as he would if he was trying to steal his horse? And, although the defendant had not testified to any conversation with or statements made to Finley in his examination in chief, this court ruled that the question was a proper one, and that the court did not commit error in permitting it to be answered.” The Avery case has been cited approvingly in a number of well-considered cases.

V. Appellant insists that tbe court erred in its refusal of instruction “B,” requested by tbe defendant at tbe close of tbe case. This instruction was as follows: “B. Tbe court instructs tbe jury that if you bave a reasonable doubt from tbe evidence that tbe intercourse defendant bad with tbe prosecuting witness, Lula Barnett, if you believe be did bave intercourse with ber, was with force and against ber will, you will solve that doubt in favor of tbe defendant and find bim not guilty, although you may believe from tbe evidence that tbe defendant did actually bave intercourse with said prosecuting witness.” There was no error in tbe refusal of this instruction. It was fully covered by instruction No. 1 given at tbe request of tbe defendant. Tbe singling out of certain essential elements of tbe offense about which testimony was given and then instructing the jury by separate instruction that they must believe and find every one of such facts beyond a reasonable doubt, bas not met with tbe approval of this court. [State v. Garth, 164 Mo. 565; State v. Wells, 111 Mo. 536.] Tbe court by instruction No. 1, as before stated, bad expressly directed tbe jury “that tbe information in this case is a mere formal charge for tbe purpose of putting tbe defendant on trial, and constitutes no evidence of bis guilt, and no juror should permit himself to weigh it as any evidence against tbe defendant in making up your verdict, for tbe law- presumes tbe defendant not guilty, and this presumption of innocence goes with bim throughout the whole case, and at tbe end of tbe trial entitles bim to an acquittal unless overcome by a proof of guilt so strong, credible and conclusive as to convince your minds beyond a reasonable doubt that be is guilty as charged.” This was certainly presenting to tbe jury tbe subject of reasonable doubt in about as strong and emphatic terms and as extremely favorable to the defendant as would reasonably meet the approval of this court.

VI. Appellant challenges the correctness of instruction No. 4 given by the court to the jury. The instruction was as follows: “If the jury believe from the evidence and beyond a reasonable doubt that the defendant did ravish and carnally know the prosecutrix, Lula Barnett, as charged in the information, then the previous and present good character of the defendant, if proven, alone and of itself cannot justify, excuse, palliate, or mitigate the offense.” This instruction should be read in connection with instruction No. 8, given on the part of the defendant, embracing the same subject, which told the jury, “that in considering the question as to whether or not the defendant is guilty or innocent of the crime charged ag’ainst him in this information, you should take into consideration and duly weigh, along with all the other evidence in the case, the evidence offered by the defendant as to his previous character as a law-abiding citizen.” While we do not wish to be understood as approving the form of instruction No. 4, yet, when the two instructions are read together, we are unwilling to say that the giving of instruction No. 4 would constitute reversible error. We are unable to understand why there should be a wandering away upon this subject from approved precedents. This court, in numerous cases, has repeatedly approved the plain and unambiguous declarations of law given by the courts of this State, which simply tells the jury that if they believe and find from the evidence in the cause that defendant, in the neighborhood in which he resides, bore a good reputation, in determining his guilt or innocence the jury will take into consideration such good character, but if after a full and careful consideration of all the testimony in the cause, including such good character, they believe beyond a reasonable doubt that the defendant is guilty of the offense charged, then they should not acquit him on the ground of such good character. We indulge the hope that, upon a retrial of this cause, if there is testimony introduced upon the subject of good reputation of the defendant, the trial court will have the instructions conform to some of the approved precedents.

VII. The trial court, upon the subject of expert testimony, by instructions Nos. 7 and 8, declared the law as follows:

“7. That the testimony of the physicians and surgeons in this case is what is known in law as expert testimony, and such testimony is to be considered by the jury, subject to the same rules of credit and discredit as the testimony of other witnesses in the case. And the expert opinions given as to whether or not the choking of the witness, Lula Barnett, would have left black marks on her throat are not conclusive on the jury, but may be disregarded entirely if the jury believe such opinions unreasonable.”

“8. You are further instructed that such expert opinions neither establish nor tend to establish the truth of the facts upon which they are based; whether the facts testified to by the other witnesses are true or false is to be determined by the jury alone. And you must also determine whether the facts and matters stated and submitted to the experts in the hypothetical questions are true in fact and have been proven in the case; whether the hypothetical case on which the opinions of the experts are based corresponds to and coincides with the facts given in the evidence, the jury alone must determine from the evidence produced in this case. And if the jury finds such hypothetical questions suppose facts not.given in evidence, they, together with the opinions of the experts based thereon, should be entirely disregarded by the jury in making up their verdict.”

The correctness of the direction to the jury upon this question is seriously challenged by learned counsel for appellant. We are unwilling to sanction and approve that part of the declaration upon the subject of expert testimony embraced in instruction No. 8, and a careful analysis of the instruction makes it manifest that the court undertakes to submit matters to the jury which were exclusively within the province of the court. The most objectionable feature of this instruction is embraced in that part of the instruction where the court says: “Whether the hypothetical case on which the opinions of the experts are based corresponds to and coincides with the facts given in the evidence, the jury alone must determine from the evidence produced in this case. And if the jury finds such hypothetical questions suppose facts not given in evidence, they, together with the opinions of the experts based thereon, should be entirely disregarded by the jury in making up their verdict.” It is clear that, if the hypothetical case on which the opinions of the experts were based did not correspond to and coincide with the facts given in evidence, the court should have excluded the questions and answers to such hypothetical questions, and this error is emphasized by the additional direction to the jury that they must determine whether there was any evidence upon which to base such hypothetical question. This direction to the jury was manifestly erroneous and constitutes reversible error.

Again we feel constrained to suggest to the trial court the propriety of following the old land-marks. The law upon the subject of expert testimony has been repeatedly and correctly declared by the courts of this State, and such declarations have uniformly met the approval of this court, and should be regarded as well-established precedents. Where medical experts testify in a case it is usual and common for the court, in directing the jury as to the credit and weight to be given to such testimony, to simply say to the jury, by its instructions, that the opinions given by the medical experts in this cause are testimony before you and subject to the same rules of credit or discredit as the testimony of other witnesses. The opinions neither establish nor tend to establish the truth of the facts upon which they are based. Whether the matters testified to by the witnesses in the cause, as facts, are true or false, is to be determined by the jury alone. Neither are the hypothetical questions put to the medical experts by the counsel in the cause evidence of the truth of the matters stated in these questions. An instruction substantially in this form would have. covered the entire subject of the expert testimony given in this cause.

VIII. It is next insisted that the court improperly declared the law by instruction No. 2 given to the jury; it was as follows:

“If the jury believe from the evidence that the defendant forcibly ravished and carnally knew the prosecutrix, Lula Barnett, against her will, they should find him guilty, even though they may further believe that after she was so ravished by defendant she rode in the buggy with him for several miles and passed by houses where strangers lived without calling out. to the occupants of such houses to inform them of her trouble.”

The Attorney-General, with commendable frankness, concedes that the wording of this instruction is at least subject to criticism, but insists that it is similar to instruction No. 4 given by the court in the case of State v. Boyd, 178 Mo. 2. As an abstract proposition of law, this instruction is correct. The courts, upon the subject of the necessity of making outcry or complaint by the female charged to have been outraged, have gone to the very extreme limits of the application of that doctrine, and we are unwilling to extend it further. Recurring to the instruction complained of, we think it clear that the mere fact of prosecutrix, under the circumstances surrounding this case, as shown by the evidence, riding in the buggy with the defendant for some distance, at a late hour in the night, passing the houses of strangers and failing to call out to the occupants of the houses or complain to them of the assault made upon her, was of little weight and force, as a circumstance in this case; however, it was before the jury and the form of the instruction is objectionable. It would be more appropriate to let the jury consider such testimony under a proper instruction by the court, advising them that the failure to make outcry or complaint must be considered in the light of the opportunity for so doing, and the conditions surrounding the, prosecutrix at the time of such failure. Instruction No. 4 in the Boyd case, to which we are cited, materially differs in form to the instruction now being discussed. There the jury was told: “It was the duty of the prosecuting witness, the said Ida Andrews, at the time of the alleged assault, to make an outcry, and as soon as an opportunity offered, to complain of the alleged offense to others; and unless you believe from the evidence that she did make such outcry at the time, and did make such complaint as soon as the opportunity offered, then you should take such circumstances of omission to make an outcry or complaint, or both, into consideration, with all the other evidence, in determining whether or not, in fact, a rape was committed. But such, complaints, if any were made, are not to be considered as evidence of the matters complained of, but only as tending to corroborate or not to corroborate her testimony, so far as you may believe they do tend to corroborate or fail to corroborate the same." This instruction was proper as applicable to the facts of that case, and met the approval of this court.

IX. Finally, appellant earnestly complains at the action of the court in permitting counsel for the State to propound numerous leading questions to the witnesses on the part of the prosecution. It is sufficient to say upon this contention that the examination of witnesses and the manner and method of eliciting testimony in the trial of a case is largely in the discretion of the trial court, and unless it is manifest that this discretion is abused, the judgment in the cause will not he disturbed upon that ground. [State v. Whalen, 148 Mo. l. c. 290; State v. Napper, 141 Mo. 401.]

We have thus given expression to our views upon the legal propositions disclosed by the record, which results in the conclusion that, for the errors as herein indicated, the judgment should he reversed and this cause remanded, which is so ordered.

All concur.


source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    THE STATE v. J. H. MILLER, Appellant.
    Division Two,
    December 12, 1905.
    1. RAPE: Indictment. An indictment for rape which charges that defendant, “her, the said May Morrison, then and there unlawfully, forcibly and against her will, feloniously did ravish and carnally know,” sufficiently alleges that the person ravished was a female.
    2. CHALLENGING GRAND JURY: Right of Defendant in Jail. It is not the duty of the court to bring in, of its own volition, a defendant who is confined in jail awaiting the action of the grand jury, in order that he may make his challenges to such jury, hut it is the business of the defendant to know of the grand jury’s being impaneled, and if he desires to challenge the jury, or any member of it, it is his duty to apply for leave or request permission to appear and do so. And when he fails to db this, a motion to quash the indictment on this ground is properly overruled.
    3. CONSPIRACY: Evidence: Practice. It is permissible for the State to prove the declarations and acts of one of the parties to a conspiracy made and done in the absence of the others, before proving the conspiracy, provided the conspiracy is after-wards proved.
    4. -: Husband and Wife: Establishing Relation: Excluding Evidence. If defendant desired to have evidence excluded on the ground that it consisted of statements of a woman who> was his wife, it was incumbent on him to demand the right to show the fact of marriage preliminary to his objection to the evidence. And where no such step is taken and no such proof is made, and there is no testimony which would justify the jury in so finding, the evidence should not be excluded on the ground that the relation of husband and wife was established by mere casual references by the prosecuting attorney in his statement and by the prosecutrix in her testimony, where there is no evidence that either had any knowledge that such relation actually existed.
    5. RAPE: Sufficiency of Evidence. The evidence in this case, which was a prosecution for rape, is examined, and held sufficient to justify a verdict of guilty.
    6. - — : Outcry and Complaint. The failure of the prosecutrix to make outcry and immediate complaint raises no presumption of law that she has sworn falsely, but it is simply a circumstance of more or less weight, depending upon the situation and surroundings of the parties, to be submitted to and weighed by the jury.
    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 he the province of the jury to say whether or not in fact a conspiracy existed, yet they are not to he 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. (50 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. Barries, 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. 108; 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; hut 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 Yt. 87; Poison v. State, 137 Ind. 523; Underhill on Crim. Evid., p. 470 ; People v. Glover, 71 Mich. 303; People v. Knight, 43 Pac. 6 ; Higgins v. People, 58 N. Y. 379; State v. Marcks, 140 Mo. 656; State v. Boyd. 178 Mo. 19.
   GANTT, J.

On March 18, 1904, the grand jury of Saline county returned into the criminal court of Saline county the following indictment:

“State of Missouri, County of Saline, ss.

“In the criminal court of Fifteenth judicial circuit within and for the county of Saline, March term, 1904.

“State of Missouri against J. H. Miller, defendant.

“The grand jurors for the State of Missouri, summoned from the body of Saline county, being duly impaneled, charged and sworn to inquire within and for the county of Saline, upon their oath present and charge that on the 8th day of March, 1904, at the county of Saline, in the State of Missouri, defendant, J. H. Miller, then and there in and upon one May Morrison, unlawfully, violently and feloniously, did make an assault, and her, the said May Morrison, then and there unlawfully, forcibly and against her will, feloniously did ravish and carnally know, against the peace and dignity of the State.”

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 fly.” "When they reached a point on the road about two miles from any house and near an old straw stack, the defendant stopped the buggy and said that they had better get out there and wait until the moon came up. The prosecutrix objected to waiting and to getting out of the buggy, but the defendant urged her to go over with his wife to the straw stack. After they reached the straw stack, the woman and the prosecutrix sat down on the lower part of the straw, and the defendant climbed up above them and sat down. After sitting up there a while alone, the defendant came down and sat down by the prosecutrix and took hold of her arm and pushed her back on the straw. She asked him what he meant. He said: “Nothing, I am not going’to hurt you.” She said to him: “You must not do that,” and appealed to the woman to know what he meant. At this the woman said, “He is not going to hurt you.” Thereupon, prosecutrix, resenting his conduct, said: “This is not right; I am not going to do it; I want to go home.” To this the defendant said: “What do you think about May?” (alluding to the woman) “She does it.” The girl said: “I am not going to.” He said: “All girls have to do it.” And she said: “I am not going to.” To this he said: “You are.” Thereupon, he got mad and cursed the woman and said: “Why did you tell me a lie?” Prosecutrix then appealed to the woman to know if she had told him that she would do such a thing, to which she did not make any answer, save to say, “He is not going to hurt you.” Thereupon, the woman appealed to the girl not to make him mad; that he had a terrible temper, and again said to her: “He will not hurt you;” and, again, the girl said she was not going to do it. He then proceeded to say that he knew girls that had got killed by refusing. Thereupon, the girl said she would go home. The woman then said to defendant,’ “I think May will do it; I think I can manage her.” At this the defendant seized the prosecutrix and threw her over on the straw, saying, I will do it.” -She testified that she resisted him and kept trying to push him off, but he succeeded in having intercourse with her; that she had never at any time consented to it. After the defendant succeeded in having intercourse with her under these circumstances, they all three again got into the buggy and drove all that night. Afterwards, while traveling along the road, defendant pointed to a house and told the prosecutrix that that was where two girls got killed for not doing snch things as she had refused to do; and that was the way they treated girls sometimes. And he also pointed to a clump of bushes where, he said, another girl had her throat cut for not doing it. He warned her not to tell anybody of what had occurred or they would put her in jail. After traveling all the next day, the defendant, the woman and the prosecutrix stopped at the house of some negroes, Ras Granger and wife, where they cooked supper and stayed all night. The defendant told the negroes that the woman was his wife and the girl was his daughter; but refused to tell his name. The house contained two rooms and a shed for a kitchen; so defendant, the woman and the prosecutrix occupied the same room and slept in the same bed that night. The negro man and his wife both testified that the prosecutrix seemed to be in great trouble and that the defendant and the woman, one or both of them, remained close to her all the time. After traveling all the next day, they stopped at the house of Mr. and Mrs. Haynie, not far from Miami. The defendant introduced the prosecutrix to Mr. and Mrs. Haynie as his sister, and again the three occupied the same room and the same bed. On both of these nights the defendant had sexual intercourse with the prosecutrix, she begging and pushing him away, but being afraid to cry out. Near Miami, the deputy sheriff intercepted them, arrested all three of them and took them to Marshall. Arriving at that city, the prosecutrix detailed the foregoing story to the prosecuting attorney, Mr. Lynch, and to her father. Two physicians made an examination of her the day she was brought back, and found her private parts swollen and tender, the mucous membrane bleeding, lacerated and torn. They both gave it as their opinion that she had very recently had sexual intercourse. While on the way with him to Marshall, after his arrest, the defendant stated to the officer that he had met this woman and girl out walking near Cow Creek, and that they all just went along to where her people were working on a farm, and that they then started to go to Iowa. The officer testified that he noticed the prosecutrix when he first came up with the party, and she was greatly worried. The defendant did not offer any evidence. And, thereupon, the court instructed the jury as follows:

“1. The court instructs the jury that the defendant in this case is charged with the crime of rape, alleged in the indictment to have been committed upon one May Morrison, at the county of Saline, in the State of Missouri, on the 8th day of March, 1904.

“And the jury are instructed that if they believe from the evidence in this case, and beyond a reasonable doubt, that the defendant on the 8th day of March, 1904, at the county of Saline, in the State of Missouri, did forcibly ravish the said May Morrison, they will find the defendant guilty as charged, and assess his punishment at death, or imprisonment in the penitentiary not less, than five years, in the discretion of the jury. By the term, ‘forcibly ravish,’ as used above, is meant the carnal knowledge of a woman by a man, forcibly and against her will.

“If the jury believe from the evidence in this case there was any element of consent, or a passive submission, on the part of May Morrison to sexual intercourse with the defendant, at the time and place charged, in either instance not enforced by violence, or induced by fear or intimidation, then he is not guilty as charged, and the jury should so find; and in ascertaining whether the defendant had sexual intercourse with May Morrison at the time and place charged, by violence or fear, or by consent of the said May Morrison, the jury should take into consideration all the facts and circumstances adduced in evidence.

“The court instructs the jury that rape is carnal knowledge of a female, forcibly and against her will, and where threats of personal violence are made to overcome her will, and she believes that her person is in great danger from such threats, and is induced thereby to submit to the will of the person making such threats, and he has sexual connection with her under such circumstances, then the law considers such carnal knowledge as having been forcibly had and against the will of the female. And if the jury in this case believe from the evidence in this case that the defendant compelled the prosecuting witness by threats of personal violence to submit her person to him in sexual intercourse against her will, and that she submitted through fear of great violence or death, then the jury should find the defendant guilty of rape as charged in the indictment and assess his punishment at death or imprisonment in the penitentiary for not less than five years, in the discretion of the jury.

“4. The court instructs the jury that if they believe from the evidence in this case that the defendant compelled the prosecuting witness by threats of personal violence to submit her person to him in sexual intercourse and against her will, and that she submitted through fear of great violence or death, then the jury should find the defendant guilty as charged in the indictment, even though the jury should further believe from the evidence that the prosecuting witness did not offer the utmost resistance to the defendant at the time of said act of sexual intercourse.

“5. The court instructs the jury that although they may believe from the evidence in this case that the prosecuting witness did not make any outcry on the straw stack at the time she claims defendant ravished, her, and did not make any complaint of the defendant having ravished her until a few days thereafter, yet if the jury further believe from the evidence in this case that the prosecuting witness had good reason to believe it would have been useless and dangerous for her to make any outcry on said straw stack at the time she claims she was ravished, and for that reason did not make any ontcry, and that she made complaint of having been ravished as soon thereafter as she had suitable opportunity to do so, and that the reason she did not make complaint any sooner was because she was under the duress of the defendant caused by his threats, then the jury under those circumstances should consider such facts in explanation why prosecuting witness did not make any outcry, and why she delayed making such complaint.

“6. The court instructs the jury that if they believe from the evidence that the defendant threatened the prosecuting witness or by any means placed her under fear of death or of great violence to her person so that her will was overcome, and that by reason of her fear so caused she did not make any outcry at the time she claims she was ravished, and did not resist her ravisher with all of her power and did not make complaint for several days after the time she claims she was ravished, then such fear so produced overcomes the presumption that she consented, arising from her failure to make outcry and her failure to make complaint and her failure to use all of her power in resisting her assailant.

“7. The court instructs the jury that, if they have a reasonable doubt of defendant’s guilt, they should acquit him; but such a doubt to authorize an acquittal should be a substantial doubt, arising from all of the facts and circumstances detailed in evidence, and not a mere possibility of defendant’s innocence.”

To the giving of which instructions on behalf of. the State, counsel for the defendant then and there duly excepted. At the request of the defendant, the court gave the following instructions to the jury:

“1. The court instructs the jury that the indictment in this case is a mere formal charge and furnishes no evidence of defendant’s guilt, and is not to be considered by the jury in arriving at their verdict in this case.

“2. The court instructs the jury that the law clothes the defendant with the presumption of innocence which attends and protects him until it is overcome by testimony which proves his guilt beyond a reasonable doubt, which means the evidence of his guilt as charged must be clear, positive and abiding, fully satisfying the minds and consciences of the jury, and it is not sufficient in a criminal case to justify a verdict of guilty that there may be strong suspicion or even strong probabilities of guilt, nor is it sufficient that the greater weight or preponderance of the evidence supports the allegation of the indictment; nor is it sufficient that upon the doctrine of chance it is more probable that the defendant is guilty than that he is innocent, but in order for a conviction the law requires the proof by legal and credible evidence of such a nature that where it is all considered it produces a clear, undoubting and entirely satisfactory conviction of defendant’s guilt, and the burden of establishing the guilt of defendant as above required is on the State, and if the jury can as readily say from the evidence that the defendant is innocent as well as they could say he was guilty, then in such case it would not be sufficient evidence on which to convict defendant, then it would be the jury’s duty to give him the benefit of the doubt and acquit him.

“3. The court instructs the jury that before conviction can be rightfully had in this case every material allegation in the indictment must be proven to the satisfaction of the jury, and the jury must be convinced beyond a reasonable doubt of defendant’s guilt, by which is meant must be convinced of his guilt to a moral certainty, and it is not sufficient in this case that the jury may believe from all the evidence considered together that the defendant had sexual intercourse with the said May Morrison, and that he used" force in having said sexual intercourse, but .it must also appear from the evidence that in addition to accomplishing his intercourse with her by force that it was against her will and without the slightest consent whatever upon her part, but that she manifested the utmost reluctance and greatest resistance to said intercourse of which she was capable, before the jury can find the defendant guilty.

“4. The court instructs the jury that the crime of rape consists of three elements, either of which is as necessary as the other to the commission of such offense, and unless all three elements are present and concur there can be no rape.

“First: There must be an assault and sexual intercourse, that is, a penetration of the female organs by the male organ.

“Second: This penetration must be by force and against the will of the female.

“Third: It must be without any consent whatever upon the part of the female, and the utmost reluctance must be manifested and the greatest resistance offered by the female to the acts of the male, and it is not sufficient in this case that the State prove to the satisfaction of the jury that the defendant made an assault upon one May Morrison and the existence of one or more of said elements, but before the State can be entitled to a conviction of the defendant under the indictment of the crime of rape, it must prove and the burden of proof is upon it to show to the satisfaction of the jury beyond a reasonable doubt the existence of all such elements. [Said instruction number four was given by the court in part, and in part refused, to which ruling of the court the defendant by his counsel then and there excepted. The remainder of said instruction will appear among defendant’s refused instructions.]

“5. The court instructs the jury that it is not in any sense incumbent upon the defendant to show his innocence of the crime of rape in order to be entitled to an acquittal, but before the State is entitled to a conviction. it must show his guilt, and although the jury may believe from the evidence that the defendant assaulted one May Morrison and penetrated her private organ with his private organ and that he used force in so doing, yet the jury are further instructed that it does not devolve upon the defendant to show, in order to the acquittal of the crime of rape as charged in the indictment, that such assault and penetration was with the consent and not against the will of the said May Morrison, but the burden is on the State to show that such assault and penetration was against the will and without the consent of the said May Morrison and that she manifested the utmost reluctance and made the greatest resistance thereto, before it is entitled to a conviction. And unless it has so shown, the defendant is entitled to his acquittal, and the jury will so find.

“7. The court instructs the jury that under the laws of the State of Missouri it is incumbent upon the injured party to make complaint of such ravishment immediately or as soon after such alleged ravishment as an opportunity can be had to do so, and if the injured party fails to make such a complaint, but only revealed her ravishment in answer to interrogations propounded to her, then such facts should be considered by the jury in determining whether or not force or duress was actually used by defendant or not, or whether she consented thereto; as where one is ravished by force and against her will she will naturally make complaint at the first opportunity, and from the failure to make such complaint it may naturally be inferred that the assault and penetration was without force and with her consent.

“8. The court instructs the jury that it is one of the natural results from rape that the party being assaulted will, if she is resisting the assault and opposed to it, make an outcry as for help if others are near at the time, and if the jury believe from the evidence in this case that May Morrison, at the time of the alleged assault, had an opportunity to make any outcry so that she could be heard by others in close proximity, then the jury should consider such facts in determining whether or not force or duress was used by defendant or not, or whether she consented thereto as naturally would be inferred that if such intercourse was by force and without her consent she would make any outcry and offer all the resistance of which she was capable.

“9. The court instructs the jury that there can be no such thing as a half-way or passive policy on the part of the injured party in order to constitute a rape of sexual intercourse, but the law requires that in order to make such intercourse rape, that the prosecutrix must have resisted the assault and penetration with all the power of which she was capable, and unless she does all the resistance of which she is capable there can be no rape, for otherwise there would be consent, and in this case although the jury may believe from the evidence that May Morrison did not give her full consent to the intercourse, yet it was her duty to resist to the fullest extent of which she was capable, and if they believe that she did not offer all the resistance of which she was capable all the circumstances considered, then there could be no rape and the verdict must be not guilty. In other words, the injured party cannot form a mental determination of opposition, and at the same time yield to physical obedience to the assault.

“10. The court instructs the jury that they are the sole judges of the credibility of the witnesses and the weight to be given to their testimony, and in determining what weight they will give to the testimony of any witness they should take into consideration the character of such witness, his or her manner on the witness stand, his or interest in the result, if any, his or her relation to or feeling for or against the defendant or prosecutrix, the probability or improbability of his or her statement, as well as all the facts and circumstances given in evidence in the cause, and in this connection you are instructed that if you believe from the evidence that any witness or witnesses have wilfully testified falsely to any material fact in this cause, you are at liberty to disregard the whole or any portion of such witness or witnesses’ testimony.”

The court refused the following portion of instruction No. 4, and instruction No. 6, asked by the defendant :

[Beginning with the comma after the word “elements,” in that part of instruction No. 4, given by the court on behalf of defendant] :

4 . . . “not only the assault but that the assault was consummated by a penetration of the private organs of said May Morrison by the defendant with his private organs by force and against the will and consent of the said May Morrison, and that she manifested the utmost reluctance and made the greatest resistance to the effort and acts of the defendant in making said assault and penetration, and unless the State has so shown to the satisfaction of the jury beyond a reasonable doubt not only that defendant made the assault as charged, but also that he penetrated her private organs with his private organ by force and against her will, and that to said assault and penetration she manifested the utmost reluctance and the greatest resistance, then it has failed to show a rape of the said May Morrison by the defendant, and the verdict must be not guilty, even though the jury may believe from the evidence that he did assault her and have sexual intercourse with her.”

6. “The court instructs the jury that in the case of rape it devolves upon the State to show, before a conviction can be had, that the party ravished made complaint thereof immediately after being ravished or as soon thereafter as such party had opportunity to do so, and the court instructs the jury that no such complaint by the prosecutrix has been proven in this case.”

"Which instructions the court refused to give, to which refusal of the instructions thus prayed, the defendant by his counsel then and there excepted.

The motion for new trial, omitting the formal parts, is as follows:

“Now at this day comes the defendant, John H. Miller, the same being within four days after the rendition of the verdict and judgment herein, and moves the court to set aside the verdict and judgment and to grant the defendant a new trial, for the following reasons, to-wit:

“1st. Because the verdict and judgment are against the law.

“2nd. Because the verdict and judgment are against the evidence.

“3rd. Because the verdict and judgment are against the law and evidence.

“4th. Because the court erred in admitting incompetent, improper and irrelevant evidence upon the trial of this cause offered by the State, and to which the defendant at the time objected and excepted.

“5th. Because the court erred in giving instructions numbers 1, 2, 3, 4, 5, 6, for the State over the defendant’s objections.

“6th. Because the court erred in refusing instructions numbers 4 and 6 asked by defendant upon the trial of the cause.

“7th. Because the court erred in refusing the instruction offered by the defendant in the nature of a demurrer at the close of the State’s case.

“8th. Because the court erred in allowing the prosecuting witness to be recalled to the witness stand after the case had been closed by both State and defense and after the demurrer had been argued in her presence and hearing in the cause, and in permitting said witness to contradict her testimony given in the case as to having made complaint of the outrage committed upon her.

“9th. Because the court erred in refusing and overruling defendant’s motion to quash the indictment in the cause.”

Which said motion the court overruled on the -- day of May, 1904, to which ruling and order of the court the defendant then and there duly excepted.

I. The indictment is sufficient. While it does not charge specifically that the prosecutrix was a female, it does charge the defendant, “her, the said May Morrison, then and there unlawfully, forcibly and against her will, feloniously did ravish and carnally know.” This point was ruled adversely to the defendant’s contention in State v. Hammond, 77 Mo. 157; State v. Warner, 74 Mo. 83; State v. Armstrong, 167 Mo. l. c. 266 and 267.

H. Defendant’s motion to quash the indictment because at the time the grand jury was impaneled, charged and sworn he was in the county jail and had no opportunity to challenge the members thereof, was properly overruled. Section 2487, Revised Statutes 1899, provides: “Any person held to answer a criminal charge may object to the competency of any one summoned to serve as a grand juror, before he is sworn, on the ground that he is the prosecutor or complainant upon any charge against such person, or that he is a witness on the part of the prosecutor, and has been summoned or bound in a recognizance as such; and if such objection be established, the person so challenged shall be set aside.” Section 2488 provides: “No challenge to the array of grand jurors, or to any person summoned as a grand juror, shall be allowed in any other cases than" such as are specified in the last section.” It was ruled in State v. Warner, supra, that where the accused at the convening of the term of court was in jail to answer the charge of felony, he had a right to be present at the impaneling of the grand jury and to make such challenges thereto as he might see fit to make; and if he request to be present and such request is denied, it would be considered reversible error. In that case counsel for the defendant, and on the same day, and before the grand jury was impaneled, charged and sworn, requested the court to have the defendant brought from jail into court so that he might be present in court and make such challenges as he might see fit, which request the court denied; to which action of the court the defendant, by his counsel, then and there excepted. Thereupon, on the same day, and before the jury was impaneled, charged and sworn, the defendant, by his counsel, filed his motion to quash the panel on the ground that he was a negro; and that the sheriff in summoning the grand jury had selected no person.or persons of color or of African descent, known as negroes, but had excluded all persons of color or of African descent solely because of their race and color. In this case no such request to be present at the impaneling and swearing of the grand jury was made known to the judge of the criminal court. In that case the case of the People v. Romero, 18 Cal. 89, was cited with approval by this court. It was said by the Supreme Court of California: “If the prisoner were refused the privilege of challenging the grand jury in and by the court of sessions, the indictment is insufficient and worthless; it is not, in other words, a legal indictment; . . . but to have this effect, the prisoner must have applied for leave or requested permission to appear and challenge the jury. It was not the duty of the court of sessions to bring him into court for the purpose of exercising this privilege. It is the prisoner’s business to know when the court meets, and if he desires to challenge the jury, to apply, if in custody, to the court, to be brought into court for that purpose; and if he fails to do this, he waives his privilege of excepting to the panel or of any member.” In the subsequent case of State v. Taylor, 171 Mo. 465, the facts were just as in this case. The defendant was in jail when the grand jury was impaneled, charged and sworn, and it was said by Burgess, J.: “But it is insisted that as the defendant was at the time confined in jail, he should have been informed of his right to challenge the array. "While it is true that the defendant was at the time confined in jail, it was to answer before the grand jury for the identical offense for which he was indicted by them, and it was his business to know of their being impaneled, and that it was for the purpose of investigating offenses of a criminal character, and to prefer indictments against such offender, if they believed from the evidence before them the charges to be true, and if defendant desired to challenge the array or any member thereof, it was his duty to have applied for leave or requested permission to appear and do so, but it was not the duty of the court to have him brought into court of its own volition in order that he might exercise this privilege. [People v. Romero, 18 Cal. 89.]” In Dobson v. State, 17 S. W. 3, under a statute in the same language as section 2487, in the Supreme Court of Arkansas the same conclusion was reached. In Barkman v. State, 52 S. W. 69, the Court of Criminal Appeals of Texas held that if the defendant desired to challenge any member of the g'rand jury he should have made formal request to those in charge of him; he should have made a formal request to the judge and not to the jailer; and if he did not have access to the sheriff, he should have made this request to the judge through the jailer; and it was held that not having done so, he had waived his privilege of challenging the grand jury. Accordingly, it must be ruled that no error was committed in refusing to quash the indictment for the grounds alleged in the motion to quash.

III. During the examination of the prosecutrix, the prosecuting attorney inquired if she had any conversation with the woman known as Mrs. Miller in regard to a trip that she was going to take to Iowa. To this question the counsel for defendant objected to any statement made by the woman, Mrs. Miller, until there had been proof of a conspiracy to commit rape; not merely evidence of a conspiracy, but a conspiracy to commit rape; and because there could be no conspiracy between husband and wife, such a conspiracy was unknown to the law. As to the first of these objections, the prosecuting attorney had outlined to the court and jury the character of the evidence by which he expected to establish the common design and conspiracy to lure and entice the prosecutrix, a girl of fifteen, from the home of her father and despoil her. A conspiracy can seldom be established by direct and positive evidence. The prosecution may prove the declarations and acts of one made and done in the absence of the others, before proving the conspiracy, provided the proof is afterwards made. [State v. Ross, 29 Mo. 32; State v. Daubert, 42 Mo. 239; Wharton’s Crim. Ev. (8 Ed.), sec. 698a; State v. Wm. Walker, 98 Mo. l. c. 104; 1 Bishop’s Crim. Law, sec. 634.] The order of the testimony is largely in the discretion of the trial court. We think there can be no doubt there was abundant evidence in this case of a conspiracy, and also of a conspiracy to rape the prosecutrix if necessary. The further objection was predicated on the assumption that the woman known as Mrs. Miller, and who made the first overtures to the prosecutrix to leave her father’s home and offered her the inducements to go with her and defendant, was the wife of defendant; but at the time this objection was made there was absolutely no proof that such a relation existed between her and defendant. It is true the woman was alluded to as the wife of defendant by the prosecutrix, but when we scrutinize her evidence it is clear it was a mere assumption on her part that they were man and wife. The prosecutrix did not testify to any fact which can he tortured into proof of a marriage in fact, or indeed a general reputation that a marriage existed. Neither did the defendant, for the purpose of excluding the evidence on that ground, offer any preliminary proof that the woman, Mrs. Miller, and defendant were husband and wife, nor was such a relation stipulated by counsel to exist. On the contrary, when defendant was on the way to Marshall, under arrest, he said to the deputy sheriff that he bought the horse and buggy, and drove out on Cow Creek, and there met these women, the Miller woman and prosecutrix, thus indicating that he never knew either of them prior to the starting on that trip. In addition to this, if the testimony of the prosecutrix is true, and there is not a word contradicting it, the conduct of the woman at the straw stack, where the outrage was committed, was contrary to all the natural instincts of a wife, in that, she not only made no objection to this alleged husband’s having intercourse with another female in her presence, but was a particeps crimmis in the outrage. Her conduct was that of a guilty procuress and not that of a wife.

In Seiler v. People, 77 N. Y. 411, a woman was separately indicted for stealing a piece of cloth. The evidence disclosed that the prisoner was in company with another woman and two men, one of whom gave his name as Brown, the other, as Miller. The two women, and Miller entered the store while Brown remained in the street from 200 to 300 feet from the store. The two women came out of the store followed by Miller; they joined Brown, and one of the three gave Brown some article which he wrapped in a piece of paper. They were arrested and the cloth found upon Brown. The prisoner stated she was unmarried and did not know the others. On the trial evidence was’ given on her part to the effect that Brown was her husband. The defense was coercion of her husband, Brown, and counsel for defendant prayed the court to instruct the jury “that the relation of husband and wife was proven to exist between the defendant and the man called Brown,” but the court refused to so charge. Discussing the refusal of this instruction, the court of appeals said: “The proof of marriage was not conelusive and uncontradicted. There was testimony which, if relied upon by the jury, was enough to uphold a verdict that the plaintiff in error was married, and that the man who went by the name of Brown was her husband. But there was testimony the other way. It consisted in her declaration that she was not his wife. ... It was for the jury to say.” Now, in this case, there was no evidence by any witness that he or she was present at the marriage of defendant and the woman, Miller, nor did it appear how long they had resided in Slater, or that they were generally reputed to be husband and wife and cohabited together as such. Without committing ourselves to the position that the latter would be sufficient where the marriage is relied on, as in this objection, as a defense, it seems to us that the mere casual references by the prosecuting attorney and the prosecutrix to the defendant as the husband of the woman, or the woman as the wife of defendant, in the light of the evidence showing that neither had any knowledge that they were actually husband and wife, did not establish such a relation. When, then, the question was propounded as to the statement of the woman, the objection that they were husband and wife and therefore could not be guilty of a conspiracy was without any basis in the evidence. If they were not married, clearly it amounted to nothing. If it was to be relied upon to exclude the evidence on that ground, it was incumbent on defendant to demand the right to show that fact preliminary to his objection. No such step was taken and no such proof made, and we think until a marriage was established or at least testimony which would have justified the jury in so finding, the objection was not well taken. But we think the admission of the testimony as to the inducements held out to the prosecutrix to go on the trip to Iowa were not prejudicial to the defendant in view of the fact that before any overt act was taken in pursuance of the woman’s solicitations and machinations, the defendant met the prosecutrix and added his solicitations to those of the woman, and told prosecutrix that the woman had told him all about the proposed trip to Iowa and advised her to go that night on the “Hummer,” and when she declined this proposition, arranged with the woman to go to the home of prosecutrix and pretend to go to sleep, and then appeared in the alley with the buggy and horse and took her away to the place where he committed the outrage. In a word, everything the woman had done was clearly the result of his own scheming and in furtherance of his own criminal purpose.

IV. The defendant’s request for an instruction directing an acquittal was properly denied. The ease made by the State was amply sufficient to authorize a conviction of rape. There was no evidence of consent to the outrage. The law does not require that the assaulted woman, in this ease an unprotected child completely at the mercy of a brutal villain, should do more than her age, strength and the attendant circumstances made it reasonable for her to do. An outcry in that field, two miles from any dwelling, would have done no good whatever. Besides she knew by that time she was in the power of an armed man, who was receiving the aid and assistance of the equally guilty woman. Neither does the fact that she made no complaint to the old negroes the next night entitle defendant to an acquittal. Their evidence shows that she was constantly under the surveillance of the defendant and the woman while at the negroes’ house, and evidently she was afraid to make a complaint. The fact that she did not make complaint until she reached Marshall and told her father and the prosecuting attorney was properly submitted to the jury. [State v. Marcks, 140 Mo. 656; State v. Boyd, 178 Mo. 19; Higgins v. People, 58 N. Y. 379.]

V. The instructions given by the court of its own motion were correct and left nothing to be desired. No error was committed in refusing instruction No. 6, prayed by defendant. It was not authorized by the evidence, as we have already said. The part of instruction 4, asked by defendant, was fully covered by the other instructions. The instructions given for defendant were in our opinion far too favorable to him, particularly those numbered 7, 8 and 9. They seem to indicate that an outcry is a necessary essential of the proof of this crime, whereas the failure of such outcry is simply a fact tending to disprove the good faith of the charge, a circumstance only of more or less weight depending upon the surrounding circumstances; a failure to make it raises no presumption of law that the prosecutrix has sworn falsely; it is a circumstance to be weighed by the jury. [State v. Marcks, 140 Mo. 656, l. c. 661 and 662.] And so, also, of the delay in making complaint.

These instructions are objectionable in the form in which they are couched, but being more favorable to defendant than they ought to have been, of course he cannot complain. The record discloses a most revolting crime. There was ample evidence to support the verdict, and the judgment is affirmed.

Burgess, P. J., and Fox, J., concur.


author: BURGESS, P. J.

text:
    THE STATE v. T. R. LAYTON, Appellant.
    Division Two,
    December 12, 1905.
    1. POSSESSION OF BURGLAR’S TOOLS: Evidence. The evidence showed that defendant and another were arrested, and that the other party was carrying a grip which was unlocked by defendant at the police station, and the grip and its contents were then and there claimed by him. The grip contained two revolvers, some cartridges, a dark lantern, screwdriver, jimmy, blow pipe, pick, false keys, pair of pinchers, and other tools of the kind employed by burglars in the breaking open of buildings and safes, and the unlocking of doors; and the grip also contained a shirt which defendant was permitted to keep and wear. The evidence also showed that, after his arrest and confinement, defendant attempted to break out of jail. Held, that the evidence was sufficient to justify a verdict finding defendant guilty of having burglar’s tools in his possession.
    2. INSTRUCTION: Reasonable Doubt. When the question of reasonable doubt is fully covered in an instruction given by the court, it is not necessary to embody it in another instruction.
    Appeal from Buchanan Criminal Court. — Ho». B. J. Casteel, Judge.
    Affirmed.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) No objection can be made to instruction 2 because it omitted the words, “beyond a reasonable doubt. ’ Instruction 1 properly told the jury that the defendant was presumed to be innocent and must be proved guilty beyond a reasonable doubt. This was sufficient; it was not necessary to add said words to every instruction. State v. Smith, 164 Mo. 567. (2) The evidence was amply sufficient to sustain the verdict; in fact, it is impossible to see how the jury could have done otherwise, if they believed the State’s witnesses.
   BURGESS, P. J.

Defendant was charged in an information lodged by the prosecuting attorney of Buchanan county with the clerk of the criminal court of said county, together with one Wm. C. Strickland, with having in their possession and concealed about their persons burglar’s tools, on the 13th day of September, 1904. A severance was granted them, and defendant put upon his trial in said court. He was convicted of the charge preferred against him and his punishment fixed at two years’ imprisonment in the penitentiary. From the judgment the defendant appeals.

The facts, briefly stated, are:

Defendant and Strickland stopped at a rooming house in St. Joseph and occupied the same room. The suspicions of the police having in some way been aroused with respect to their conduct, officers J. W. Wilson and Charles Beauchamp were detailed to watch them. On the 6th day of August, 1904, these officers arrested and took both of them to the police station. Strickland was carrying a grip which was unlocked by the defendant at the police station, and the grip and its contents were then and there claimed by the defendant. When the grip was opened it was found to contain two revolvers, some cartridges, a dark lantern, "a screwdriver, a jimmy, a blow pipe, a gas tube, a pick, a portable vice, a platinum wire, some false keys, some charcoal, some files, some skeleton keys, a pair of scissors, a pair of pinchers, chalk, snips, etc. In addition to all of these, a shirt was found in the grip which defendant was permitted to keep and wear. Defendant stated to the officers that he used the charcoal and blow pipe to melt metal, but refused to tell what he was doing with the other articles.

The evidence showed that the tools found in the grip were of the kind andcharacterused by burglars in the breaking open of buildings and safes, and in the fitting of keys and unlocking of doors. The evidence also showed that, after his arrest and confinement in jail, defendant attempted to break out, and to that end made an opening in the floor of his cell. When questioned about it next morning, and asked if he intended to leave there, he replied that he did. The defendant testified in his own behalf that he was never arrested before; never had any of the tools in his possession, and did not own them.

The court gave the usual instructions in such cases. While the defendant is not represented in this court, he filed a motion for a new trial in the court below in which he assigned for error the action of the court in admitting illegal testimony and excluding competent and legal testimony; that the verdict of the jury was against the weight of the evidence and against the law and the evidence; that the court failed to properly instruct the jury as to the law and illegally gave instruction number two.

As the only instruction given by the court which is specifically challenged is instruction number two, it alone will be noticed. The only objection urged against this instruction is that it omitted the words “beyond a reasonable doubt;” but the jury was told in the first instruction given by the court that “the defendant is presumed to be innocent of the offense with which he stands charged, and this presumption continues throughout the case until overcome by evidence showing him guilty beyond a reasonable doubt, and if the jury have a reasonable doubt of defendant’s guilt, they should acquit him; but such doubt to justify an acquittal must be a substantial doubt, founded on the evidence, and not a mere possibility of defendant’s innocence.” It was, therefore, unnecessary to embody this question in any other instruction in this ease. The defendant was given the full benefit of it by said first-instruction.

The evidence fully warranted the verdict of the jury and established the defendant’s guilt beyond any question. Finding no reversible error in the record, the judgment will be affirmed. It is so ordered.

All concur.


text:
    THE STATE v. WILLIAM C. STRICKLAND, Appellant.
    Division Two,
    December 12, 1905.
    Appeal from Buchanan Criminal Court. — How. B. J. Casteel, Judge.
    Affirmed.

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

This is a companion case to the case of State v. Layton, ante, page 613, the only difference in the situation of the two men, so far as shown by the evidence, being that the defendant in this case carried the grip in which the burglar’s tools were found, while Layton opened the grip at the police station. Defendant offered no evidence at all.

The parties were indicted together, and a severance granted them. The same points presented by this appeal were presented by the defendant in the other case, and for the reasons assigned the judgment is affirmed.

All concur.