State v. Marcks

Gantt, J. The defendant was indicted at the May term, 1895, of the St. Louis Criminal Court, for rape alleged to have been committed by him upon one Nellie Berger, a female over the age of fourteen years, in the city of St. Louis on the first day of April, 1895. At the July term, 1895, he was duly arraigned and entered his plea of not guilty, was tried and convicted, and his punishment assessed at five years in the penitentiary. From sentence on said verdict he appeals. The testimony developed that defendant was a brother-in-law of the prosecutrix, having married her sister on the twenty-sixth of February, 1895. He carried on a business of making ‘‘shop coats.” The prosecutrix not only worked for him, but often visited his wife, her sister. On the morning of April 1, 1895, she went to his house, and when she arrived defendant and his wife had not yet arisen. Her sister sent her on an errand, and while she was absent defendant and his wife arose, dressed and ate breakfast. There were three rooms in the apartments occupied by defendant —two rooms, a hall, and the kitchen across the hall. When prosecutrix returned that'morning, she sat down on the bed in the kitchen with defendant and his wife, — 660 — and they chatted and laughed awhile, and then defendant sent his wife into the shop room across the hall to work. After her departure he began playing with the prosecutrix, wrestling with her in a joking way, as they often did. While sixteen years old, she was still quite small and wore short dresses. Her station in life appears to have been very humble. She seems to have permitted his familiarities as if he were her brother. She testified that while they were thus playing together on the morning mentioned, he seized her so unexpectedly that before she could realize her position he had her completely in his power, and by force had sexual connection with her. She testified that she resisted his assault to her full ability, with all the strength she had, and never at any time consented to the intercourse. She testified she holloed. “I just screamed at first; then I holloed and I said, ‘My Grod, Charley, you are killing me.’ He told me to shut up, and then I was in so much pain I couldn’t hollo.” She says she did not tell her sister when she came into the room soon after the occurrence; that her sister had only been married to defendant a few weeks, and she hated to tell her. She told her mother about a week after the occurrence. I. The sufficiency of the evidence to sustain a conviction f.or rape is challenged. We think there was sufficient direct and positive evidence to justify a conviction of rape in this case. Taking into account the age of the girl; that she was still wearing short dresses; the relationship of defendant; the familiarities permitted on account of that relation; the sudden attack and advantage taken of the girl; her resistance and cries, and her positive evidence that she never at any time consented to the intercourse, we think the criminal court properly submitted the facts to the jury. It is urged that she is not corroborated; that her — 661 — own evidence destroys the charge of rape. Bnt is she without corroboration! Without knowing what the defendant would testify, she went on the stand and testified (carefully and candidly it seems to us) to the time when and place tohere the outrage was committed, and named the defendant as her despoiler. In all these essential particulars she was fully corroborated by the defendant himself, and contradicted by him only as to the force in accomplishing the penetration. She is'also corroborated by the loathsome disease which he imparted to her. Is he to go acquit because she made no immediate complaint to her sister, or her mother, or because she gives an unsatisfactory reason for her failure to do so! It is true there is no evidence of threats of violence if she told of the outrage, but it is not to be forgotten that she was young and ignorant, and might well have hesitated at charging her sister’s husband with such a crime to that sister. But let it be admitted that her delay was unreasonable, measured by ordinary experience, and that it is a circumstance which excites suspicion of her veracity and tends to discredit her, the question arises, does it do more than this! Does it raise such a conclusive presumption against her evidence that an appellate court is justified in ignoring the verdict of a jury, and the refusal ■ of the criminal court to set aside that verdict on that ground alone! On this point we think the great weight of authority is to the contrary. In Higgins v. People, 58 N. Y. 379, Chief Justice Chubch, for the court, said: “Any considerable delay on the part of a prosecutrix to make complaint of the outrage constituting the crime of rape, is a circumstance of more or less weight, depending upon the other surrounding circumstances. There may be many reasons why a failure to make immediate or instant outcry should not discredit the witness. A — 662 — want of suitable opportunity, or fear may sometimes excuse or justify a delay. There can be no iron rule on this subject. The law expects and requires that it should be prompt, but there is and can be no particular time specified. The rule is founded upon the laws of human nature, which induce a female thus outraged to complain at the first opportunity. Such is the natural impulse of an honest female. But if instead of doing this she conceals the injury for any considerable length of time, it naturally excites suspicion of fraud and tends to discredit her.” In State v. Peter, 8 Jones’ Law (N. C.), 21, Chief Justice Peabsokt, for the court, discussing a charge in which the fact that the woman had not made known or complained of the outrage for two weeks was presented to the jury as a circumstance affecting her credibility, said: ilIt is not a rule of law that silence, under such circumstances, raises a presumption that the witness has siuorn falsely. The passages in the books to which reference was made on the argument use the word ‘presumption,’ not as a rule of law, but an inference of fact, and treat of silence as a circumstance tending strongly to impeach the credibility of the witness, on the ground that a forcible violation of her person so outrages the female' instinct that a woman not only will make an outcry for aid at the time, but will instantly and involuntarily, after its perpetration; seek someone to whom she can make known the injury and give vent to her feelings. The want of this demonstration of feeling or ‘involuntary outburst’ is treated of as a circumstance tending to show consent on her part; but it is nowhere held that this female instinct is so strong mid unerring as to have been made the foundation of a rule of law, as distinguished from a rule in respect to evidence, and the weight to which it is entitled is a matter for the jury.” — 663 — In State v. Knapp, 45 N. H. 148, the court said: “The grounds upon which is received the proof of complaints by the prosecutrix, made soon after the injury, are that they are corroborative of her testimony on the stand, and tend to repel the presumption that would arise from the absence of such complaints; for it is laid down, very generally, that if such com-plaints are not made soon, or within a reasonable time after the injury, or without an inconsistent delay, it is a strong though not conclusive presumption against the truth of the charge. It is equally well settled, also, that the delay to make complaint may be explained by showing that it was caused by threats, or undue influence of the prisoner. “It is in truth a question purely of fact to he determined by the jury; and how much the delay in making complaint ought to weigh against the prosecution must depend upon the circumstances of each particular case.” To the same effect substantially, see State v. Niles, 47 Vt. 82; Young v. Johnson, 25 N. E. Rep. (N. Y.) 363; People v. O’Sullivan, 104 N. Y. 481; Dunn v. State, 12 N. E. Rep. (Ohio) 826. Our examination leads us to believe that the absence of an immediate complaint and the want of an outcry are strong and potent reasons why the jury should infer that the charge of rape is feigned and false, yet when there is positive evidence of force on the one side, and of resistance to the full extent of the ability of the female on the other, the ivhole question becomes one of fact, and where the verdict has met the approval of the trial cou-rt, this court should not assume to pass upon the credibility of the female but leave it to the jury and the trial court who heard and saw the witnesses. It' seems to us moreover that it is in harmony with — 664 — the analogies of the law to leave the credibility of the witness to the jury, although the evidence is weakened by an adverse presumption against its truthfulness. Thus this court in State v. Harkins, 100 Mo. 666, approved an instruction for the State which declared that the jury were at liberty to convict the defendant on the uncorroborated testimony of an accomplice. This rule has been repeatedly followed by this court since that case. State v. Jackson, 106 Mo. 174; State v. Woolard, 111 Mo. 248; State v. Minor, 117 Mo. 302; 1 Bishop’s Crim. Proc., sec. 1169; 8 Crim. Law Mag., sec. 3, p. 6; Roscoe’s Crim. Ev. [8 Ed.], p. 201; 1 Greenleaf’s Ev., sec. 380; Wharton, Crim. Ev., sec. 441. If it is competent to convict upon the uncorroborated evidence of an accomplice, a confessed criminal, why may not a jury convict upon the evidence of the injured woman even though her conduct may not in all things conform to the ordinary experience of mankind? Why may not the jury exercise the same discretion in the one case as in the other and if convinced beyond a reasonable doubt convict the party charged with rape'? ; II. A reversal of the judgment is asked upon the proposition that in a rape case if the defendant testifies and denies the rape and the prosecutrix stands alone unsupported and uncorroborated there is an equipoise of oath against oath and the prosecution mtist fail for want of sufficient evidence to warrant a conviction, and State v. Patrick, 107 Mo. 147, is cited as committing this court to that statement of the law. The writer concurred in the opinion in State v. Patrick, but he did not think then, nor does he now understand, that he necessarily committed himself to this doctrine. In that case our learned brother, in the fifth-paragraph of his opinion, considered whether the evidence in that case was sufficient to support the verdict. He had in — 665 — the preceding part of his opinion discussed the admissibility of the statements made by Mrs. Patrick ac-evidence in behalf of the State and cited many authorities. Proceeding to discuss the insufficiency of the evidence, he says: “If the authorities already cited as to the absolute necessity of corroboration of the prosecutrix, where, as here, the defendant occupies the witness stand and explicitly denies the perpetration of the offense charged,' thus creating an equipoise of oath against oath, [are to control], then the evidence is wholly insufficient, as there is no corroboration whatever in the case. The authorities on this point commend themselves as being in accord with sound reason and universal human experience, and so- this ease might well be made to rest on the entire absence of any corroborative evidence.” But it was not permitted to rest upon that announcement. On the contrary, our learned brother proceeded to demonstrate that upon the whole case there was a complete failure of substantial evidence to justify the conviction. However that may be, we feel now that we can not assent to the proposition, and as the question is one of great importance in the administration of the criminal law, we desire to state our reasons for not concurring. The rule announced by our learned brother finds ample support in Mathews v. State, 19 Neb. 330, and Topolanck v. State, 40 Tex. 160. It was laid down in those cases that in the absence of corroboration the testimony of the prosecutrix alone is not sufficient to sustain a conviction. On the other hand it is asserted with equal clearness by the Supreme Court of Alabama, in State v. Boddie, 52 Ala. 395, that “there is no rule of law which forbids a jury to convict one charged with this crime on the uncorroborated testimony of the prosecutrix although she be impeached for ill fame in chastity or otherwise, provided the jury are satisfied — 666 — beyond a reasonable doubt of the truth of her testimony.” This case was again followed in State v. Barnett, 83 Ala. 40, and this statement of the rule is approved by 2 Bishop, New Criminal Procedure, sec. 968. Lord Hale stated the rule in this way: i!The party ravished may give evidence upon oath, and is in law a competent witness; but the credibility of her testimony, and how far she is to he believed, mist be left to the jury, and is more or less credible according to the circumstances of fact that concur in that testimony.” 1 Hale, P. C. 633. See, also, 1 East, P. C. 448; 2 Roscoe’s Crim. Ev. [8 Ed.], mar. page 903. All the common law writers and nearly all courts have commended Lord Hale’s observation that “the charge of rape is an accusation easy to make, and hard to be proved, and harder still to be defended by the party accused, though ever so innocent;” and his summing up of the concurring facts, which naturally gave greater probability to the evidence of the prosecutrix; and on the other hand of the circumstances which would tend strongly to convince a jury that her evidence was false or feigned, is most admirable, but it is now generally conceded that under systems of procedure like ours in which the judge is not permitted to charge a jury orally and instructions are all written, courts must not invade the province of the jury by pointing out what inferences of fact they should draw from the evidence, nor to point out to them that certain testimony is weak or strong. To weigh the evidence is the prerogative of the jury, not of the court. The practice of the common law courts in this respect is forbidden by our statute. Hence much of Lord Hale’s argument, excellent and convincing as it is, would not be tolerated in an instruction now, nor should it control a jury, as he himself recognized when he closed his enumeration of the suspicious circum — 667 — stances by saying ‘These and like circumstances (among others the failure to make an outcry) carry a strong but not conclusive, presumption that her testimony is false or feigned.” We take it then at common law there was no absolute rule of law requiring corroboration in prosecutions of rape as in treason, or perjury, or in seduction under our statutes, and this much Chief Justice Maxwell admits in Mathews v. State, 19 Neb. 380, but he avoids the conclusion we have reached by invoking the statute of Nebraska which allows a defendant to testify in his own behalf. Compiled Statutes Nebraska, sec. 473, 1887; Consolidated Statutes Nebraska, sec. 6101, 1891. We have been unable to find anything in the Compiled or Consolidated Statutes of Nebraska which tends to disturb or change the common law rule beyond the fact that the defendant is rendered a competent witness. The statute, in enabling him to testify, does not define what amount of credibility is to be attached to his evidence, and we confess we do not grasp the reasoning by which the conclusion is reached that merely because the defendant is rendered competent to testify, his evidence, denying the crime, is to be‘construed, as a matter of law, as a perfect stand-off to that of the injured woman. Whatever may be the construction of the Nebraska law on this point we feel quite sure that no such weight is to be accorded to the testimony of a defendant under section 4218, Revised Statutes 1889, which provides that a defendant shall not be incompetent to testify by reason of being the person on trial, but any such fact may be shown and considered for the purpose of affecting his credibility. There is nothing in our statute permitting a defendant to testify which indicates that his testimony is to — 668 — be considered as creating an equipoise with that of the prosecutrix. Each is a competent witness subject to the crucial test of cross-examination and impeachment and the jury’s duty and prerogative is to weigh all the evidence and credit that which to them appears most reasonable and creditable, and reject that which to them may seem unreasonable and incredible. We can not concur in the statement that merely because a defendant testifies an equilibrium of evidence is produced. We think it must occur to every lawyer’s experience that the simple unvarnished statement of one witness is often so convincing that it outweighs the testimony of many on the adversary side, whose manner, bearing, and reputation are such as to discredit them even without direct impeachment. Indeed it is often hard to conceive of an equipoise of evidence, even as between two men of equal moral- standing. So much depends upon the manner and characteristics of the witnesses and their ability to state clearly what they know of a given transaction; of the power to recall vividly the occurrences about which they testify. Nowhere is the maxim “qualitas non guantitas” more appropriately invoked than in the weighing of testimony. III. As to the evidence tending to prove that five weeks after the date of the rape was charged to have been committed defendant had the same specific gonorrheal disease with which the prosecutrix was afflicted, we think in view of the confession of defendant that he had, on April 1, 1895, sexual connection with the girl, and in view of the fact that she was shown to have been afflicted with it a week or so later, that it was competent. At least it does not constitute reversible error. Moreover no exception was saved to its admission and it was not error to refuse to exclude it afterward. A party can not speculate upon the. effect of evidence which is — 669 — objectionable upon its face when offered, as this clearly was, if ever, and then complain of a refusal to reject it later in the trial. Maxwell v. Railroad, 85 Mo. 95; State v. Hope, 100 Mo. 347; People v. Chacon, 102 N. Y. 669; Miller v. Montgomery, 78 N. Y. 282; Quin v. Lloyd, 41 N. Y. 349; Barkley v. Copeland, 86 Cal. 483; 1 Rice, Ev., secs. 258 and 259; Hickman v. Green, 123 Mo. 165. Accordingly the judgment of the criminal court of St. Louis is affirmed. Barclay, C. J., and Macfarlane, Robinson and Brace, JJ., concur. Burgess, J., concurs' in paragraph 2 but dissents from the view expressed in the first paragraph, and holds the evidence insufficient to sustain a conviction. Sherwood, J., dissents, and expresses his views in a separate opinion.