State v. Catron , 317 Mo. 894 ( 1927 )

Tried to a jury on June 10, 1926, on the charge of raping Clara Pleimling on April 25, 1925, defendant was convicted and sentenced to a term of five years in the State penitentiary, from which an appeal was duly taken.

The evidence adduced on the part of the State warrants the following finding. Clara Pleimling, employed in the city of St. Louis, a young married woman, eighteen years of age, then separated from her husband, with an action for divorce pending, which was later granted, was escorted by one Krueger, a young single man, to a dance at Fenton, in St. Louis County. The conveyance used was an Overland coupe. Other couples accompanied them in machines or met them there. Returning home, on reaching Seibert Avenue and Morganford Road in St. Louis County, the couples stopped a few minutes for a word of farewell. The other couples then moved on, leaving Krueger and Miss Pleimling chatting. On the departure of the couples, Krueger lit and smoked a cigarette. After a lapse of ten to fifteen minutes, while the couple were seated in the coupe talking, defendant and one James H. Chance, jointly informed against with defendant, but as to whom a severance was granted, drove up in a Star coach, stopping immediately behind Krueger's coupe. The Star coach had two doors, with individual seats in front, it being necessary to raise and tip one of the seats forward to permit access to the rear seat. After stopping and ascertaining that the occupants of the coupe were a man and a woman, by prearrangement Chance ordered Krueger from the coupe at the point of a pistol, and defendant bade the woman alight and, taking her by the arm, ordered and pushed her towards and into the back seat of the coach. Krueger then protested, attempting to protect the girl, but was met with the threat, "Get going G____ D____ you, or I will blow your head off," upon which Krueger drove on. Chance then took the wheel and defendant occupied the rear seat next to the girl. Chance drove the car along Seibert Avenue until defendant decided to drive. After driving on, defendant stopped the coach on Seibert Avenue, in St. Louis County. They attempted to humor the girl, and Chance, who was beside her, demanded that she give in to them, saying, "You will never get home if you do not." At this time defendant asked Chance for the "gat," and Chance handed something to defendant, which she was unable to identify as a gun. During the occurrence Clara was crying and she stated she was very weak. Chance in trying to humor her told her it was no use to cry, but if she would give in to them she would be taken home. After stopping they pointed a gun at her once, but she could not remember whether or not it was often. Chance tore her bloomers and had sexual intercourse with her, defendant in the meantime standing near the car with a gun. After Chance had accomplished his purpose, defendant boarded the coach and had sexual intercourse with her in the same manner. They then drove her to Risch's Grove, four or five blocks from her home, put her out, and drove away. The evidence shows that the culprits first accosted Krueger and Clara about two-thirty A.M., on the roadside, and that they delivered her at Risch's Grove about five-thirty A.M. In the interim, Krueger reported the kidnapping to Constable Knight, and upon Clara's alighting from defendant's car at Risch's Grove, she immediately hied to the home of Constable Knight, reporting the assault and rape on her to him. She found Krueger waiting for her there. Defendant was arrested at six-thirty A.M. the same morning at his home.

Inasmuch as the evidence on both the part of the State and defendant shows that neither Clara and Krueger on the one hand nor defendant and Chance on the other had ever known or heard of each other previously, it may satisfy the curious with regard to the promptness of the arrest to state that the preliminary examination shows that Clara unobserved placed herself on alighting in a position to read the number of the state license on the coach, which she communicated to the constable.

On cross-examination Clara stated in substance that no houses were observed at the place of assault. The night was dark and damp, resulting in her inability to identify defendant. At the time of the rape she was sitting on the front edge of the seat with the upper portion of her body reclining towards the back of the seat, which was about a foot from the floor. One of her hands was grasping the seat, the other was against his shoulder, pushing him away. The following questions were asked and answers returned.

"Q. Now after this big man had intercourse with you, you say he persuaded you to give in to him? A. Yes, sir.

"Q. Under his persuasion you did give in to him? A. Yes, sir."

Chance, testifying for the State, corroborated the prosecutrix as to the assault in the first instance with the pistol, as to the kidnapping of the prosecutrix, as to no previous acquaintance with her, and as to the sexual intercourse both he and defendant had with her. His further testimony was to the effect that she not only made no outcry, but that she consented to the intercourse provided they would take her home. However, he stated she was sobbing during the abduction.

Defendant, on the stand, admitted that he and Chance abducted the prosecutrix, taking her from her escort as related by the State's witnesses, and that he had sexual intercourse with her, but denied that he forced prosecutrix to yield to him, and asserted that it occurred with her consent. Such other facts as are pertinent, if any, will be related in the issues discussed.

I. It is the contention that the court erred in refusing to sustain instructions in the nature of demurrers to the evidence to acquit defendant. As the defense refused to stand on the instruction offered at the close of the State's case,Sufficient but went forward introducing evidence, we mustEvidence: consider all the evidence in reviewing the question.Force: The abduction of the prosecuting witness andConsent. defendant's sexual intercourse with her may be eliminated from further notice, as both acts were admitted by defendant.

Defendant's position that the cause was not submissible to the jury is based on the predicate that she made no outcry, offered no resistance to the advances of the abductors, and stated on cross-examination that she was persuaded to let them have intercourse with her. It is then deduced from the rules of law reported in State v. Miller, 191 Mo. 587, 90 S.W. 767, that the State failed to establish beyond a reasonable doubt sexual intercourse by force, against the will of the female and without any consent whatever on her part. The phrases "against the will" and "without the consent" of the female, interpreted as equivalent terms, are defined as the manifestation of the utmost reluctance and the greatest resistance on the woman's part.

In a similar case, State v. Barbour, 234 Mo. 526, 137 S.W. 874, where a like contention was made, the court summed up the essential elements as relating; first, to the necessity of showing non-consent; second, to the necessity of proving that all practicable resistance was made; third, to the evidential force of a failure to make a great outcry; and, fourth, to the inference arising from the manner of performing the sexual act.

The first and second points, non-consent and resistance, are well treated in State v. Barbour, supra, which we adopt as here pertinent, reading: "It will be seen at once that appellant's first and second points are correlated, that is, non-consent is proven whenever there is proof that the woman made all practicable resistance to the ravisher. This has been well stated by BLACK, J., in State v. Cunningham. 100 Mo. l.c. 391, as follows: ``The State must, of course, show force on the part of the defendant, and that the woman did not consent. The questions of fact are interwoven, and the one is somewhat dependent upon the other. Whether the woman did or did not consent to the act is, in most cases, to be inferred from the surrounding circumstances; and, hence, resistance or want of resistance becomes an important element in the evidence. So, the resistance to be expected depends much upon the physical and mental strength of the woman. The distinctions between the facts to be proved, and the evidence adduced in proof of them, should be kept in mind. The importance of resistance is simply to show two elements in the crime: Carnal knowledge by force by one of the parties, and non-consent thereto by the other. [State v. Shields, 45 Conn. 264.]'"

If the record had shown merely an act of intercourse by force, the utmost resistance would probably have not been established. The record, however, develops further facts and circumstances, such as fear of personal violence, and we have held that the utmost resistance doctrine is not applicable to a state of facts where the female is put in fear of personal injury, [State v. Barbour, supra.] The amount of resistance necessary to annul consent depends on the uselessness of resistance. Neither actual physical force nor physical resistance is necessary, if the woman yields through fear caused by threats of great bodily harm or injury, for such is constructive force, deleting the necessity of the utmost physical reluctance and resistance, and constituting the intercourse rape, provided the threats are made previous to the act.

It is asserted that, because of the age and weight of the girl, eighteen years and 155 pounds respectively, and the age and weight of defendant, nineteen years and 119 pounds respectively, rape was inconceivable. Where relevant facts justify it, this argument would probably have force, but inasmuch as it casts aside the fear of harm engendered by the duress of abduction and threatened injury, it is impertinent to the facts here developed.

The girl and her escort were, on being accosted by defendant and Chance, met with threats of injury such as to subdue her will. The abduction at the point of a pistol, without more, threatened great bodily harm, suggesting to her consciousness the fear of dreadful and dire consequences and overcoming her will. For a girl to be accosted on a road at two-thirty o'clock in the morning, taken from her companion at the point of a pistol and carried away by ruffians she never knew existed, puts her in such fear, we will presume, as to overcome and continue to overcome her will, so that the subsequent acts of intercourse by them upon her will constitute rape, absent evident facts and circumstances to the contrary. However, this was not the full extent of the threats and duress, for the intimidation continued when Krueger was told by Chance, "Get going, G____ D____ you or I will blow your head off." Demanding that they be permitted to accomplish their purpose, they again frightened her with the threat, "You will never get home if you do not." At this time a pistol was asked for and handed to defendant. To the frightened and intimidated girl it was an additional threat to have pointed the gun at her after stopping. All of the above facts and circumstances negatived consent as did the tearing of her bloomers; and it is inconceivable that it would have been necessary to tear her bloomers if she had consented. Further corroboration of her lack of consent is shown by the crying and sobbing during the whole occurrence. That she was physically weak from fear and mental strain tended to show reluctance and resistance to her utmost strength.

Defendant maintains, however, that the facts and circumstances show her consent. This is based on her cross-examination to the effect that she was persuaded and under the persuasion she gave in to them; that after the act by Chance she remained in the same position she had theretofore assumed while defendant satisfied his passions. We are unable to agree that by use of the word persuasion she meant consent. The use of the pistol in the abduction, the menace to her escort, the threat that if she did not give in to them she would never get home, the pointing of the pistol at her, the handing of it to defendant just before the act of intercourse by Chance, the crying and sobbing, the weakened condition of the woman and the tearing of her bloomers, supported by the determination to accomplish their purpose whether or not, interpret the word persuasion as used by her on the trial to mean non-resistance to intercourse caused by a well grounded fear of great bodily harm and even death. That these men intended to murder her escort, if it became necessary, and to maltreat and do her great bodily harm, even to the extent of killing her, if thwarted in their brutish purpose, we entertain no doubt. That she remained in the same position after Chance had ravished her was, we infer, due to stupefaction at the enormity of the thing done to her. We may say in passing that defendant is as responsible for the rape committed by Chance on her as he is for his own act of rape.

II. It is suggested that the evidence, that the girl was a young married woman and abroad at two-thirty A.M. with an escort returning from a dance, characterized her a loose character. At that time she was separated from her husband, with a divorceImprudent suit pending. She may not have been circumspect inWoman. going to the dance with Krueger, but no evidence of moral delinquency appears. Youth is gregarious, loving company and action. We see nothing of looseness about her, only a lack of prudence. Whatever her actions though, it is said that kissing goes by favor, not by right; and it has been held that by force and without her consent one may be guilty of ravishing an unchaste woman. Want of chastity may have hearing on the question of consent, but may not be shown as a defense or in mitigation. [33 Cyc. 1420.]

III. Defendant points to the absence of a great outcry and the inferences to be drawn from the manner of performing the act to absolve him from criminal responsibility. As we said in State v. Barbour, supra: "No inference of a conclusive nature canOutcry. be drawn from either of these bases. At the most they give rise to a disputable presumption which the jury were entitled to draw or not to draw as they might see fit under the circumstances in evidence. . . . At any rate, such deductions, if admissible, were not compulsory, hence the trial court was clearly right in relegating them to the jury."

The evidence shows defendant and Chance isolated the girl on a lonely road in the dark, too deep for her to later recognize them. No one came near and no houses were observed. A great outcry would have been futile. It is said, however, that houses were passed on the way to Risch's Grove where she was let out, but the record contains no evidence that anyone was up or abroad or could have intervened. Moreover, their purpose had been accomplished. We see no opportunity for an effective outcry to this point. Immediately upon alighting, the girl hied herself to the home of the constable, when and where she told her story. The reporting of the matter in this manner at the earliest opportunity was a circumstance in her favor, tending to show non-consent.

The questions of assault, force, will or consent, utmost reluctance and resistance, and sexual intercourse were properly submitted to the jury and the jury were justified on the case made by the State in finding the evidence showed defendant guilty beyond a reasonable doubt. Our conclusions are supported by State v. Cunningham, 100 Mo. 382, 12 S.W. 376; State v. Dusenberry,112 Mo. 227, 20 S.W. 461; State v. Barbour, 234 Mo. 526, 137 S.W. 874; 1 Wharton on Crim. Law (9 Ed.) sec. 557; 2 Bishop on Crim. Law (7 Ed.) sec. 1125.

IV. It is said that the verdict was the result of bias, prejudice and passion on the part of the jurors and contrary to the weight of the evidence. If, by the weight of the evidence, it is meant that the case was not submissible to the jury for lack ofPassion sufficient facts, we have heretofore disposed of theand matter. If it is meant that the evidencePrejudice. preponderates in favor of defendant, that question was wholly within the province of the jury and the trial court. The light sentence of five years automatically disposes of the question of bias, prejudice and passion on the part of the jurors.

V. It is complained that the court erred in failing to reprimand the prosecuting attorney and in failing to discharge the jury when the prosecuting attorney in his closing argument compared the prosecuting witness with the daughter or daughters of members of the jury and stated that the same thingArgument might happen to their daughters as happened to theto Jury. prosecuting witness. This is the only assignment of error, relative to the argument, in the motion for a new trial that we are permitted to notice, under the ruling in State v. Standifer, 289 S.W. 856. The record, however, fails to divulge that the prosecuting attorney mentioned the word "daughter" in his argument.

We think the record discloses that defendant was afforded a fair and impartial trial. The judgment is accordingly affirmed.Higbee and Henwood, CC., dissent.