State v. Huff , 164 Mo. 480 ( 1901 )

BURGESS, J.

— Defendant was convicted in the circuit court of Monroe county for assault with intent to ravish one Nettie Carter, and his punishment fixed at three years’ imprisonment in the penitentiary. After unavailing motions for a new trial and in arrest defendant appeals.

It appears from the record that between two and three o’clock of the afternoon of October 8, 1900, at Monroe county, while Nettie Carter, a feeble-minded female, then about twenty-two years of age, was going from her father’s house in said county along the public road leading therefrom to a neighbor’s, on an errand, defendant who was traveling along the road in a one-horse buggy in the same direction, overtook her and asked her to get in the buggy and ride with him, which she did. Immediately after she got in the buggy and they had started the horse, defendant began taking liberties with her with her consent, such as hugging and kissing her and feeling her breast, and then soliciting her to permit him to have sexual intercourse with her, which she refused.

After having gone a few hundred yards defendant gave her a dollar, stopped the buggy, and asked her if he should hitch the horse to the fence, and they get out, but she declined. He then asked her about the dollar, and she gave it back to him. He then got down upon his knees in front of the girl with his back to the dashboard and his hands under her clothing, when her mother, who was cutting sprouts in a pasture hard by, being attracted by the motions of one of her arms, and thinking that whoever it was, was sick, advanced towards the buggy, and heard a female voice crying, and several times heard her daughter say, “Let me out of the buggy.”

She finally reached the buggy, and when she did, found her daughter and defendant in the position indicated. Whereupon, she made defendant release his hold upon her daughter, hit him two or three times in the face with the buggy whip, when the girl got out of the buggy, and defendant went on west.

Defendant did not deny his purpose and desire to have connection with the girl, but asserted he did not desire to do so without her consent, and that he had no knowledge whatever of the feeble condition of her mind.

She testified as a witness in the case and stated that she did not object to the privileges that defendant took with her, and i]iat she knew that it was wrong to permit him to do so.

At the close of the evidence upon the part of the State, defendant interposed a demurrer to the evidence which was refused, and in this it is insisted error was committed.

It is well settled by this court that it will not undertake to pass upon the weight of the evidence in a criminal case, and unless there was no substantial evidence to justify the verdict or it was the result of passion, prejudice or partiality on the part of the jurors, it will not interfere. [State v. Nelson, 98 Mo. 414, and authorities cited.]

The evidence in the case at bar showed that the prosecuting witness, Nettie Carter, was of feeble mind, and while it also showed that she lmew that it was wrong to allow the defendant to take the privileges with her which it appeared from the evidence he did, and from which, in the absence of countervailing evidence, it might be inferred that she assented to the importunities of defendant, yet according to his own evidence, after he gave her the dollar, he stopped the buggy and asked her to get out upon the ground, that she refused to do so, and gave him back the dollar. He then undertook to have connection with her in the buggy under the circumstances before stated, and while doing so, the mother of the girl testified that she heard her crying, and repeatedly ask to be let ont of the buggy. These facts showed that she was not consenting, and whether the facts in evidence showed beyond a reasonable doubt that defendant intended to accomplish his purpose regardless of any resistance that Nettie Carter might offer, was, we think, properly submitted to the jury.

It must necessarily follow that there is nothing disclosed by the record which justifies the assertion that the verdict was the result of prejudice, passion or partiality.

It is claimed by defendant that the first and second instructions asked by him should have been given, there being no-evidence upon which a verdict could be sustained, but it must logically follow from what has been said that there is no merit in such contention.

It is further insisted that the court erred in refusing the fifth instruction asked by defendant, to the effect that if Nettie Carter’s mind was too weak to give her consent to carnal intercourse with defendant, yet unless he had notice of such mental unsoundness to that extent, if any, such unsoundness of mind should not be considered by the jury. - But in view of the fact that she had sufficient intelligence to know that it was wrong to allow defendant to take privileges with her of an immoral tendency, and if she had, she also had sufficient intelligence to consent to criminal connection with defendant, no error was-committed in refusing this instruction, because the only question for the jury under the evidence was, whether she did in fact directly or impliedly consent thereto, so that it was of no consequence whether defendant had notice of the feeble condition of her mind at the time' of the commission of the offense or not.

The action of the court in refusing the eighth instruction asked by defendant is assigned for error, but the answer to this contention is, that it was wholly immaterial and properly refused. Nor is there any merit in the assertion that error was committed in giving the third and sixth instructions in behalf of the State. The instructions that were given covered every phase of the case, and were very fair to the defendant.

Einding no reversible error in the record we affirm the 'judgment.

Sherwood, P. J., and Gantt, J., concur.